Citation Nr: 21026897 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-29 626 DATE: May 4, 2021 ORDER Entitlement to service connection for right foot pes cavus is granted. Entitlement to service connection for left foot pes cavus is granted. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to non-service-connected pension is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his right foot pes cavus began during active service. 2. Resolving reasonable doubt in the Veteran's favor, his left foot pes cavus began during active service. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral hearing loss for Department of Veterans Affairs (VA) purposes. 4. The Veteran is not permanently and totally disabled from non-service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right foot pes cavus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for right foot pes cavus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 4. The criteria for entitlement to non-service-connected pension benefits have not been met. 38 U.S.C. §§ 1503, 1521, 5312; 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2005 to September 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the VA agency of original jurisdiction (AOJ). In an August 2015 substantive appeal, the Veteran requested a videoconference hearing. The Board scheduled a January 2019 hearing and sent him a December 2018 hearing notification letter. The Veteran failed to appear at the hearing and has not given any explanation for his failure to appear. The hearing request is therefore considered withdrawn. See 38 C.F.R. § 20.704. These matters were previously before the Board in August 2019. With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection Service connection may be granted for 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 pes cavus The Veteran contends that he has bilateral foot disabilities caused by the boots he wore in service. The Board notes that the record contains only a portion of the Veteran's service treatment records (STRs). Many of the STRs are missing and could not be found. Where some or most of a veteran's STRs are unavailable through no fault of the veteran's, VA has a heightened duty to "to consider the applicability of the benefit of the doubt rule, to assist the claimant in [otherwise] developing the claim, and to explain its decision . . . ." Cromer v. Nicholson, 19 Vet. App. 215, 21718 (2005). This does not raise a presumption that the missing medical records, if available for consideration, would necessarily support the claim, however. Missing STRs do not lower the legal threshold for proving a claim. When a claimant's medical records have been lost or destroyed, the case law does not establish a heightened 'benefit of the doubt,' only the heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision. See id.; Ussery v. Brown, 8 Vet. App. 64, 68 (1995); Russo, 9 Vet. App. at 51. The Board is required to consider and discuss all relevant evidence on both sides of the issue. Evans v. West, 12 Vet. App. 22, 30 (1998). Under the benefit-of-the-doubt rule, where an approximate balance of positive and negative evidence exists regarding the merits of an issue material to the determination of a matter, the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 57 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). After resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran has a current disability of bilateral pes cavus that is related to in-service foot pain. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.102; 3.303(a). An October 2010 private podiatry record noted that the Veteran had "bilateral foot and ankle pain . . . ongoing for a number of years." The private podiatry record diagnosed the Veteran with "severe" pes cavus of the right and left foot. In a statement dated September 2012 (received in November 2012) the Veteran attributed his foot problems to "intensive wear of heavy boots 16 hours a day." The Veteran reported at a December 2020 VA examination that he had "bilateral feet pain during service," which he described "as an aching pain exacerbated by prolonged standing and walking." The Veteran is competent to report foot and ankle pain experienced in service; the Board finds his testimony to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Because the Veteran's bilateral foot disorder began in service and continued post-service into the claim period, the Board finds that service connection is warranted. See 38 C.F.R. § 3.303. Thus, service connection for right and left foot pes cavus is granted. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that service connection is warranted for hearing loss due to in-service noise exposure. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). On the authorized audiological evaluation in January 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 20 15 LEFT 25 15 15 25 20 Speech audiometry revealed speech recognition ability of 96 percent in both ears. Under 38 C.F.R. § 3.385, impaired hearing is considered a disability in three circumstances: (1) where the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; (2) where the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; and (3) where the Maryland CNC Test speech recognition scores are less than 94 percent. Because neither ear meets one of these three requirements, the Veteran's impaired hearing at the January 2020 VA examination is insufficient to qualify as a disability for VA compensation purposes. Accordingly, service connection for bilateral hearing loss is not warranted and the claim is denied. Pension 3. Entitlement to non-service-connected pension The Veteran contends that he is entitled to nonservice-connected pension. Entitlement to non-service-connected pension exists if a veteran "of a period of war" meets certain net worth requirements, does not have an annual income in excess of the applicable maximum annual pension rate, and is either age 65 or older or is permanently and totally disabled from non-service-connected disability not due to the veteran's own willful misconduct. 38 U.S.C. §§ 1521(a) and (j), 5312; 38 C.F.R. §§ 3.3 (a), 3.23(a). The Veteran has not provided information related to his net worth or annual income. This information is not required, however, because he is also younger than 65 and therefore must be found permanently and totally disabled from non-service-connected disability. As of this decision, the Veteran is service-connected for bilateral pes cavus, tinnitus, and a psychiatric disability (social anxiety disorder) for the entire nonservice-connected pension claim period. In his November 2011 claim, the Veteran cited these disabilities as well as hearing loss as the disabilities that prevent him from working. As noted above, the Veteran does not have hearing loss and, beyond the November 2011 claim, he has not asserted that hearing loss prevents him from working. Additionally, the evidence does not support a finding that the Veteran was prevented from working at any time during the appeals period due to any of his disabilities. The Veteran experienced at least one period of unemployment, as noted in an October 2013 VA medical center (VAMC) record, which was associated with a recent move. The majority of the evidence, however, shows that the Veteran was employed throughout the appeal period and currently works as an insurance broker. The Board therefore finds that entitlement to non-service-connected pension is not warranted, and the claim is denied. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.