Citation Nr: 21027248 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-07 493 DATE: May 5, 2021 ORDER 1. A rating higher than 10 percent for tinnitus has been withdrawn and is dismissed. 2. An effective date earlier than March 30, 2018, for service connection for tinnitus has been withdrawn and is dismissed. 3. New and material evidence having been received, the petition to reopen the claim of service connection for right knee disability is granted. 4. New and material evidence having been received, the petition to reopen the claim of service connection for left knee disability is granted. 5. New and material evidence having been received, the petition to reopen the claim of service connection for left foot disability is granted. 6. New and material evidence having been received, the petition to reopen the claim of service connection for psychiatric disorder is granted. 7. New and material evidence has not been received, and the petition to reopen the claim of service connection for sleep apnea is denied. 8. The reopened claim of entitlement to service connection for right knee disability is denied. 9. The reopened claim of entitlement to service connection for left knee disability is denied. 10. Entitlement to service connection for bilateral hearing loss disability is denied. 11. Entitlement to service connection for diabetes mellitus is denied. 12. Entitlement to service connection for a psychiatric disorder is denied. 13. Entitlement to service connection for right foot disability, to include pes planus and plantar fasciitis, is denied. 14. The reopened claim of entitlement to service connection for left foot disability, to include pes planus and plantar fasciitis, is denied. 15. Entitlement to service connection for a bilateral eye disability, to include exotropia, is denied. FINDINGS OF FACT 1. On August 26, 2019, prior to the promulgation of a decision in the appeal, the appellant, through his authorized representative, submitted a written request that a withdrawal of his appeal on the issues of an increased rating and earlier effective date for tinnitus is requested. 2. In a September 2013 rating decision, the RO denied service connection for bilateral knee pain, left foot pain, sleep apnea, and depression. 3. The Veteran did not timely initiate an appeal of that decision's denial of service connection for bilateral knee pain within one year of notification. 4. The Veteran did not perfect an appeal of the September 2013 rating decision's denial of service connection for sleep apnea, left foot pain, and/or depression following the issuance of a statement of the case in September 2014. 5. Evidence added to the record since the September 2013 rating decision denying service connection for bilateral knee pain relates to an unestablished fact necessary to substantiate that claim and raises a reasonable possibility of substantiating that claim. 6. Evidence added to the record since the September 2013 rating decision denying service connection for left foot pain relates to an unestablished fact necessary to substantiate that claim and raises a reasonable possibility of substantiating that claim. 7. Evidence added to the record since the September 2013 rating decision denying service connection for sleep apnea does not relate to an unestablished fact necessary to substantiate that claim and does not raise a reasonable possibility of substantiating that claim. 8. Evidence added to the record since the September 2013 rating decision denying service connection for depression relates to an unestablished fact necessary to substantiate that claim and raises a reasonable possibility of substantiating that claim. 9. The Veteran did not serve on active military, naval, or air service in the Southwest Asia theater of operations and is therefore not a Persian Gulf Veteran. 10. The Veteran's right knee arthritis was not shown in service and did not manifest within one year following a period of active duty, and the disability is not otherwise related to an in-service injury or disease. 11. The Veteran's left knee arthritis was not shown in service and did not manifest within one year following a period of active duty, and the disability is not otherwise related to an in-service injury or disease. 12. The Veteran's bilateral hearing loss disability was not shown in service and did not manifest within one year following a period of active duty, and the disability is not otherwise related to an in-service injury or disease. 13. The Veteran's diabetes mellitus was not shown in service and did not manifest within one year following a period of active duty, and the disability is not otherwise related to an in-service injury or disease. 14. The preponderance of the evidence is against finding that a psychiatric disorder, to include depression, began during a period of active duty, or is otherwise related to an in-service injury or disease. 15. Bilateral pes planus was noted on entry and was not aggravated during a period of active duty. 16. The preponderance of the evidence is against finding that a right foot disability, to include plantar fasciitis, began during a period of active duty, or is otherwise related to an in-service injury or disease. 17. The preponderance of the evidence is against finding that a left foot disability, to include plantar fasciitis, began during a period of active duty, or is otherwise related to an in-service injury or disease. 18. The preponderance of the evidence is against finding that a bilateral eye disability, to include exotropia, began during a period of active duty, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's claim for a rating higher than 10 percent for tinnitus by the appellant's authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the Veteran's claim for an effective date earlier than March 30, 2018, for the award of service connection for tinnitus by the appellant's authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The September 2013 rating decision that denied service connection for bilateral knee pain, sleep apnea, and depression is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 4. The criteria for reopening the claim for service connection for right knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for reopening the claim for service connection for left knee disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. The criteria for reopening the claim for service connection for left foot disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The criteria for reopening the claim for service connection for sleep apnea have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 8. The criteria for reopening the claim for service connection for a psychiatric disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 9. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 10. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 11. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 12. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 13. The criteria for service connection for a psychiatric disorder, to include depression, are not met. 38 U.S.C. §§ 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 14. The criteria for service connection for a right foot disability, to include pes planus and plantar fasciitis, are not met. 38 U.S.C. §§ 1110, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 15. The criteria for service connection for a left foot disability, to include pes planus and plantar fasciitis, are not met. 38 U.S.C. §§ 1110, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 16. The criteria for service connection for a bilateral eye disability, to include exotropia, are not met. 38 U.S.C. §§ 1110, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1996 to November 1996 and from March 2003 to December 2003, with additional service in the Army Reserves. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for tinnitus, denied the Veteran's attempts to reopen claims of service connection for bilateral knee pain and sleep apnea; denied service connection for diabetes mellitus, eye conditions, and right foot pes planus; and confirmed and continued the previous denials of service connection for left foot pain and depression. The Veteran filed a notice of disagreement in June 2018, which disagreed with all of the denials and the initial rating and effective date assigned for tinnitus. The RO issued a statement of the case in February 2019 and the Veteran perfected his appeal with a March 2019 VA Form 9. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing is associated with the claims file. Withdrawal 1. A rating higher than 10 percent for tinnitus 2. An effective date earlier than March 30, 2018, for service connection for tinnitus 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In an August 2019 statement (prior to the hearing on appeal), the appellant, through his authorized representative, has withdrawn his appeals on the issues of an increased rating for tinnitus and an earlier effective date for the grant of service connection for tinnitus and, hence, there remain no allegations of errors of fact or law for appellate consideration. See August 26, 2019 correspondence. Accordingly, the Board does not have jurisdiction to review these two claims, and they are dismissed. New and Material Evidence Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c)(2012); 38 C.F.R. § 20.1100 (2019). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 3.103(b)(1), 19.25, 20.1103. An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105(a) (2012); 38 C.F.R. § 20.200 (2013). An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ's decision and a desire to contest the result. 38 U.S.C. § 7105(b); 38 C.F.R. § 20.201 (2013). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105(b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2013). If a timely NOD is not filed, the determination becomes final, and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105(c) (2012). If the claimant files a timely NOD and the disagreement is not resolved, the AOJ must provide the claimant and his or her representative, if there is one, with an SOC. 38 U.S.C. § 7105(d) (2012); 38 C.F.R. § 19.30 (2019). As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the SOC or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C. § 7105(d)(1); 38 C.F.R. § 20.302(b) (2019). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200 (2013). If a claimant fails to respond after receipt of the SOC, the AOJ may close the case. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 19.32 (2012). Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed unless it is inherently incredible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 3. 4. New and material evidence relating to right and left knee disabilities Prior to the filing of the current claims for service connection for bilateral knee disabilities, the AOJ previously denied a claim of service connection for bilateral knee pain in September 2013. The Veteran did not file a notice of disagreement with this denial of service connection for bilateral knee pain. The September 2013 rating decision denied service connection for bilateral knee pain based on a finding of no current disability. The evidence since that rating decision includes a September 2015 knee and lower leg conditions disability benefits questionnaire (DBQ) that shows current bilateral knee arthritis. Therefore, this new evidence relates to an unestablished fact necessary to substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board concludes that the criteria for reopening claims of service connection for bilateral knee disabilities have been met. 5. New and material evidence of left foot disability Prior to the filing of the current claim for service connection for left foot disability, the AOJ previously denied the claim of service connection for left foot pain in September 2013. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c)(2012); 38 C.F.R. § 20.1100 (2019). The Veteran filed an October 2013 notice of disagreement with the September 2013 rating decision's denial of service connection for left foot pain and the RO issued a statement of the case in August 2014. The Veteran, however, did not submit a timely substantive appeal. The September 2013 rating decision denied service connection for left foot pain based on a finding no current disability. The evidence since that rating decision includes the September 2015 foot conditions DBQ that contains diagnoses of pes planus and plantar fasciitis. Therefore, this new evidence relates to an unestablished fact necessary to substantiate the claim. See Shade, 24 Vet. App. 110. Accordingly, the Board concludes that the criteria for reopening claims of service connection for left foot disability have been met. 6. New and material evidence of sleep apnea Prior to the filing of the current claim for service connection for sleep apnea, the AOJ previously denied the claim of service connection for sleep apnea in September 2013. The Veteran filed an October 2013 notice of disagreement with this denial of service connection for sleep apnea and the RO issued a statement of the case in August 2014. However, the Veteran did not submit a timely substantive appeal. The September 2013 rating decision denied service connection for sleep apnea because, while the evidence showed the Veteran had a diagnosis of sleep apnea, the evidence did not show an associated in-service event, disease, or injury. The evidence since that rating decision includes more recent treatment records that confirm his diagnosis of sleep apnea and his February 2021 hearing during which the Veteran's attorney argued that he was entitled to service connection for sleep apnea on a presumptive basis as a Gulf War Illness. A current diagnosis was already of record at the time of the September 2013 denial. Additionally, despite the Veteran's claim of Persian Gulf service, the Veteran did not submit evidence of this service or provide an explanation as to why his service record did not reflect such service and did not submit other evidence suggesting an environmental exposure that could be associated with his current sleep apnea. The Board finds as fact that the allegation of having served in the Persian Gulf is inherently incredible, as the service records make clear that the Veteran did not have foreign service. Therefore, this new evidence does not relate to an unestablished fact necessary to substantiate the claim of service connection for sleep apnea. See Shade, 24 Vet. App. 110. Accordingly, the Board concludes that the criteria for reopening the claim of service connection for sleep apnea have not been met. 7. New and material evidence of psychiatric disorder Prior to the filing of the current claim for service connection for a mental health condition, which is recharacterized as a psychiatric disorder, the AOJ previously denied the claim of service connection for depression in September 2013. The Veteran filed an October 2013 notice of disagreement with this denial of service connection for depression and the RO issued a statement of the case in August 2014. The Veteran did not submit a timely substantive appeal. The September 2013 rating decision denied service connection for depression because the evidence did not show combat experience or complaints, treatment, or diagnosis for depression in service, and the July 2013 mental disorders DBQ did not diagnose a mental disorder. The evidence since that rating decision includes medical treatment records showing a current diagnosis of depression. Therefore, this new evidence relates to an unestablished fact necessary to substantiating the claim. See Shade, 24 Vet. App. 110. Accordingly, the Board concludes that the criteria for reopening the claim of service connection for a psychiatric disorder have been met. 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). Active service includes active duty; any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (IDT) 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); 38 C.F.R. § 3.6. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). This presumption applies only to periods of active duty and not to the Veteran's ACDUTRA or IDT with the Army National Guard because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or IDT, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). This presumption can only be rebutted by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The record does not include an entrance exam prior to the Veteran's second period of active duty service. Absent such an examination, the presumption of soundness does not attach. See Smith v. Shinseki, 24 Vet. App. 40, 44-46 (2010). Thus, the preponderance of the evidence is sufficient to establish a pre-existing condition. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Finally, the Board notes that a Persian Gulf Veteran may be entitled to compensation if he "exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of [38 C.F.R. § 3.317]" which have manifested to a compensable degree either in service or no later than December 31, 2021. Although the Veteran alleges service in the Persian Gulf, specifically Iraq, this is not reflected in his service records, which affirmatively show no foreign service. At his February 2021 hearing, the Veteran testified that he was deployed to Iraq for nine months in 2003. His DD 214 shows nine months of active duty service in 2003, but affirmatively shows no foreign service during this period or an earlier period. Further confirming this fact is that he did not receive an award or decoration consistent with service in Southwest Asia. Moreover, according to his service treatment records, the Veteran was seen at the Winn Army Community Hospital in Fort Stewart, Georgia, on July 14, 2003, in the middle of this period of active duty. Thus, while the Veteran was activated in support of Operation Enduring Freedom/Noble Eagle, there is no credible evidence that he was physically in Southwest Asia during this activation. Additionally, in his testimony, the Veteran indicated that he served in the Persian Gulf during Desert Storm. This is not reflected in the record and the Board takes judicial notice of the Veteran's date of birth in 1977, which would render him ineligible for military service during that period as Desert Storm ended prior to the Veteran's fourteenth birthday. 8. 9. Service connection for right knee and left knee disabilities The Veteran contends that he has bilateral knee disabilities that are causally linked to his active duty, to include his July 1996 knee injury during pugil stick fighting, his July 2003 left knee sprain, and/or his August 2011 left knee strain following an injury during physical training during Reserve service. The Board notes that the contemporaneous treatment records note a left knee injury in July 1996, but the September 1996 physical profile is for the right knee due to a July 1996 injury during pugil stick fighting. In the May 1996 Report of Medical History prior to the Veteran's entrance into service, he reported a history of his left knee occasionally giving way in 1989, but denied any recent problems. The May 1996 Report of Medical Examination shows that clinical evaluation of the lower extremities was normal. Thus, no pre-existing knee condition was noted at entrance. The Veteran has a current diagnosis of bilateral knee arthritis as evidenced by the VA treatment records and DBQs. Arthritis is a chronic disease under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, arthritis was not shown during a period of active duty, did not manifest to a compensable degree within one year following a period of active duty, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with arthritis of either knee until the July 2013 knee DBQ for the left knee and a September 2016 VA treatment record for the right knee, both of which are several years after his separation from active duty and years outside of the applicable presumptive period. Indeed, an October 2009 VA orthopedic treatment record diagnosed him instead with left knee pain, patellofemoral syndrome, and chondromalacia. At the February 2021 hearing, the Veteran testified that his knee problems began in both his first and second period of active duty, but he deliberately did not report his knee problems during service because he thought it would look bad. While the Veteran is competent to report experiencing symptoms of knee pain since his first period of service, the Board finds the reports of continuity of symptomatology not credible. While a May 2009 record notes a several-year history of left knee pain with a history of torn meniscus collateral ligament (MCL) in 2000, his service treatment records do not show that this tear occurred in service. An August 2009 VA treatment record notes that this MCL injury likely began in high school, which is consistent with his report of trick knee at the time of his entrance exam. At his February 2000 periodic examination for his Reserve service, the Veteran denied current knee problems, while acknowledging his previously reported left knee problems. A June 2000 sick slip notes an illness characterized by swollen right knee and dizziness. A corresponding service treatment record from the next day notes that the Veteran had altered that slip to reflect additional limitations including "no duty or field." Service treatment records for a left knee sprain in July 2003 during his second period of active duty show that he reported sustaining an injury one month prior. Based on the above, the Board finds the Veteran's reports of ongoing knee symptomatology is not credible. While a Veteran might generally downplay chronic symptoms, it does not follow that he would fail to report a long history of symptoms once he decided to seek treatment. Likewise, the Veteran's willingness to alter his July 2000 sick slip to include additional limitations is not behavior consistent with someone who was unwilling to report chronic symptoms for fear of looking bad or weak. Further, while the Veteran asserts that the reported symptoms were manifestations of chronic bilateral knee disabilities, he is not competent to determine that these symptoms were manifestations of his current bilateral knee arthritis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires the ability to establish chronic pathology from reports of multiple acute injuries. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. Service connection for right and/or left knee arthritis may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a competent nexus evidence exists between the Veteran's arthritis and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The July 2013 VA examiner found no right knee disability and opined that the Veteran's left knee osteoarthritis was not at least as likely as not related to an in-service injury, event, or disease, including prior knee sprain. The rationale was that the left knee osteoarthritis was multifactorial and the Veteran was overweight and prone to developing degenerative joint disease. While the Veteran believes his bilateral knee arthritis is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. The Veteran does not describe an immediately observable cause and effect relationship between a confirmed in-service injury and his current arthritis. At his July 2013 knee DBQ, the Veteran reported an MCL injury following a fall from a truck. This injury is not documented in service and, instead, an August 2009 VA treatment record notes that this MCL injury likely began in high school. At his September 2015 knee DBQ, he stated that his knee disabilities are the result of repeated wear and tear injuries. Thus, this issue is medically complex, as it requires specialized medical education to establish pathology in the presence of several acute injuries with significant periods of time between credible reports of symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for right and left knee disabilities, and the claims are denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 10. Service connection for bilateral hearing loss disability The Veteran contends that his bilateral hearing loss disability is causally linked to his active duty, to include in-service noise exposure. A hearing loss disability is defined for VA compensation purposes with regard to audiologic testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Id. The Veteran has a current diagnosis of bilateral hearing loss disability as evidenced by January 2015 private audiogram, which showed hearing loss disability and recommended hearing aids. Subsequent VA treatment records and the May 2018 DBQ confirm a diagnosis of bilateral hearing loss disability. As an organic disease of the nervous system, sensorineural hearing loss, is a chronic disease under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the bilateral hearing loss disability was not shown in service, did not manifest to a compensable degree within one year of a period of active duty, and was not noted in service with attributable continuity of symptomatology. A November 2003 audiogram showed normal hearing, as did May 2009 and November 2009 audiograms during the Veteran's Reserves service. The first competent evidence of a hearing loss disability was a January 2015 private audiogram, more than a decade after the Veteran's separation from his second and final period of active duty and more than a decade outside of the applicable presumptive period. Thus, presumptive service connection based on a chronic disease is not warranted. Service connection for bilateral hearing loss disability may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's bilateral hearing loss disability and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The May 2018 VA examiner opined that the Veteran's bilateral hearing loss disability is not at least as likely as not related to an in-service injury, event, or disease. The rationale was that his hearing thresholds for his entrance, separation, and six-years post-separation were within normal limits for both ears with no threshold shift. The Board finds this opinion highly probative, as the examiner had examined the Veteran and reviewed the file and provided a rationale that was based upon medical principles and evidence in the file. While the Veteran believes his bilateral hearing loss disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specific diagnostic testing results to establish a hearing loss disability for VA purposes and requires the ability to account for this passage of time between injury and disability given the intervening audiograms showing normal hearing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for bilateral hearing loss disability, and the claim is denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 11. Service connection for diabetes mellitus The Veteran contends that his diabetes mellitus is causally linked to his active duty. The Veteran reports a current diagnosis of diabetes mellitus. Diabetes mellitus is a chronic disease under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown in service, did not manifest to a compensable degree within one year of a period of active duty, and was not noted in service with attributable continuity of symptomatology. The Veteran does not allege a diagnosis of or treatment for diabetes during service or within one year of service. At his February 2021 hearing, he estimated that he was first diagnosed three years or so earlier. The first indication of a diagnosis of diabetes in the medical records is a January 2015 VA treatment record showing elevated A1c levels consistent with uncontrolled diabetes mellitus. This was several years after his separation from service and years outside of the applicable presumptive period. Thus, presumptive service connection based on a chronic disease is not warranted. Service connection for diabetes mellitus may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's diabetes mellitus and an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. VA did not obtain a medical nexus opinion on this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, 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 disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, the Board finds no evidence beyond the Veteran's allegation suggesting that he has diabetes mellitus that is causally related to his military service. Specifically, the evidence does not show a relevant in-service disease or injury. To the extent that the Veteran's attorney suggested a link to in-service chemical exposure, no such exposure has been shown. As such, an opinion is not necessary. While the Veteran believes his diagnosis of diabetes mellitus is related to service in Iraq, the Board reiterates that the preponderance of the evidence weighs against findings that he had any such service. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for diabetes mellitus, and the claim is denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 12. Service connection for a psychiatric disorder The Veteran contends that he developed a psychiatric disorder due to fear for his life while serving in a combat zone in Iraq or due to combat-related head injuries during service. He has not alleged an injury or disease related to his Reserves service. 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, while the Veteran has a current diagnosis of major depressive disorder and anxiety disorder, the preponderance of the evidence is against finding that a psychiatric disorder began during a period of active duty, or is otherwise related to an in-service injury, event, or disease. The July 2013 VA mental disorders DBQ examiner noted the Veteran's complained of chronic sleep impairment, but found that he did not meet the criteria for a mental disorder at that time. A February 2014 VA treatment record shows a single episode of major depressive affective disorder. This is the first medical evidence of a psychiatric disorder, and it is more than a decade after his separation from active duty service, which does not support the finding that a psychiatric disorder had its onset during a period of active duty. The September 2015 VA mental disorders DBQ examiner opined that the Veteran's a psychiatric disorder is at least as likely as not related to an in-service injury, event, or disease; however, the opinion is not probative because the preponderance of the evidence weighs against finding that the combat-related head injury or injuries described occurred. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). This DBQ refers to injuries described in the April 2015 neuropsychological evaluation, during which the Veteran reported a long history of head trauma, with the most severe event occurred in 2003 or 2004 and involved his being hit on the chin with a metal pipe. He stated that this was combat related and reported combat exposure during deployment in Iraq in 2003. While the Veteran is competent to report that he sustained a head injury that was combat related, his reports are not credible due to internal inconsistency and inconsistency with other evidence in the record, which does not support that the Veteran served in Iraq. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Again, the record does not support the Veteran's reports of service in Iraq or that he performed any foreign service. Furthermore, the record does not show combat service or even service in a combat zone. As combat is not shown, the Board finds the absence of any record of a head injury during service to be highly probative, weighing against the claim. Absent the chaotic circumstance of combat service, it is highly unlikely that a severe head injury would not be documented in the Veteran's service treatment record. Thus, an in-service incurrence or aggravation of a disease or injury is not shown. While the Veteran may believe his psychiatric is related to combat-related head injuries and/or fear for his life during service in Iraq, the Board reiterates that the preponderance of the evidence weighs against findings that he had any such service. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for a psychiatric disorder and the appeal is denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 13. 14. Service connection for right foot and left foot disabilities The Veteran is alleging he has bilateral foot disabilities that had their onset in service or are otherwise related to service. 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 Veteran has current diagnoses of bilateral pes planus and bilateral plantar fasciitis. See e.g., September 2015 foot conditions DBQ. The May 1996 examination prior to the Veteran's entrance into his first period of active duty documents mild asymptomatic pes planus. As such, this was noted on entry and, therefore, pre-existed his active duty service. In other words, the presumption of soundness does not attach as to this diagnosis. The question then becomes whether the Veteran's pre-existing pes planus was aggravated during either period of active duty. Here, there is no showing of an increase in the severity of the Veteran's pes planus during a period of active duty. The Veteran reported functional capacity limitations related to his feet in April 2012. He sought treatment for left foot pain in December 2012. A VA treatment record from April 2013 noted the Veteran's complaints of bilateral foot pain for several years. Custom arch supports were prescribed for the Veteran's congenital pes planus. Despite the reference to "several years" of foot pain, there is no evidence that the Veteran had pain or any other symptom associated with his pes planus during either period of active duty. Since the Veteran's complaint of bilateral foot pain is not shown to have occurred during a period of active duty, the Board need not determine whether this reflects the natural progress of this disability. Moreover, there was no record of an associated injury during ACDUTRA or INACDUTRA to account for any increase in his pes planus. As such, the preponderance of the evidence is against a finding that the Veteran's pes planus increased in severity during active service. Therefore, no aggravation of the Veteran's pre-existing bilateral pes planus is shown. Turning to the bilateral plantar fasciitis diagnosis, the Board notes that the only in-service foot complaint was a November 1996 service treatment record notes one week of left foot pain and diagnosed Achilles tendonitis. At his July 2013 VA foot conditions (other than flat foot/pes planus) DBQ, the Veteran reporting a gas can falling on his left foot during service. This July 2013 examiner found that the Veteran's Achilles tendonitis in service had resolved and there was no current evidence of Achilles tendonitis and no other identified pathology of his left foot. The Veteran has not submitted any medical nexus evidence to contradict these findings. There is no record of right foot complaints or injury. Absent any in-service incurrence or aggravation of a disease or injury, service connection for right foot plantar fasciitis cannot be established. See Shedden, 381 F.3d 1163, 1166 -67. Again, while the Veteran believes his plantar fasciitis is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. The Veteran does not describe an immediately observable cause and effect relationship between a confirmed in-service injury and his current plantar fasciitis. Additionally, his pre-existing bilateral pes planus can also result in foot pain. Thus, this issue is medically complex, as it as it requires specialized medical education to establish differentiate the symptoms associated with his pre-existing bilateral pes planus and his plantar fasciitis and to account for a significant period of time between his separation from service and his initial diagnosis of plantar fasciitis. Jandreau, 492 F.3d 1372, 1377, 1377 n.4. Consequently, the Board gives more probative weight to the competent medical evidence. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claims for service connection for right and left foot disabilities, and the claims are denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 15. Service connection for a bilateral eye disability, to include exotropia The Veteran is seeking service connection for a bilateral eye disability. Congenital or developmental defects, such as refractive error of the eyes, are not diseases or injuries within the meaning of applicable legislation and, thus, are not disabilities for which service connection may be granted. 38 C.F.R. § 3.303(c); see also 38 C.F.R. § 4.9; Beno v. Principi, 3 Vet. App. 439 (1992). Refractive errors to include astigmatism, myopia, hyperopia, and presbyopia. Service connection is not available for any loss of vision attributable to refractive errors. VA treatment records show visual impairment attributable to presbyopia. See e.g., April 2013 VA treatment record. VA prescribed eyeglasses. Although, significantly impaired visual acuity was shown at the time, the September 2015 DBQ and subsequent VA treatment records note that the Veteran's subjective visual acuity testing is not consistent with objective findings. Moreover, the April 2017 treatment record noted that the Veteran ambulated better than expected for someone with profound vision loss. Finally, there is no indication that any degree of impaired visual acuity stems from an eye condition other that presbyopia, which, as a refractive error, is not a disability for VA purposes. 38 C.F.R. § 3.303(c). The September 2015 VA eye conditions DBQ diagnosed alternating, intermittent exotropia, which had been repaired. No other eye disability was diagnosed. A March 2014 eye evaluation noted decreased visual acuity and nystagmus, possibly recent onset. Both exotropia and nystagmus are impairments of the muscle function of the eyes. The Board concludes that, while the Veteran has impaired muscle function of the eyes, diagnosed as exotropia and nystagmus, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The record suggests that the Veteran's exotropia pre-existed service. In a September 2013 letter, the Veteran's private optometrist noted a history of exotropia since childhood, which had worsened over the prior five years and progressed to the point where he was having difficulty with driving and near sightedness. At the time of his September 2015 VA eye conditions DBQ, the Veteran reported doing eye exercises as a child and, more recently, undergoing multiple surgeries outside of VA to repair this condition. Nevertheless, this condition was not noted on entry into active duty service. Furthermore, as this condition is not mentioned in any of his service treatment records, there is insufficient evidence to meet the clear and unmistakable evidence standard to rebut the presumption of soundness for his first period of active duty service, and the Veteran's eyes are presumed sound for that period. See Wagner, 370 F.3d 1089. The Board concludes that, while the Veteran has impaired muscle function of the eyes, diagnosed as exotropia and nystagmus, the preponderance of the evidence is against finding that it began during a period of active duty, or is otherwise related to an in-service injury, event, or disease. For example, when seen in May 2013, the examiner noted that the Veteran presented for binocular work-up with history of "large angle intermittent exotropia." The Veteran reported having this problem for a long time "but it has become worse/more noticeable recently" The Veteran recalled "eye exercises" that he did when he was a kid to try to correct this problem. The record does not contain a positive medical nexus opinion linking the Veteran's current bilateral eye disability to an in-service injury, event, or disease. His service treatment records do not show complaints of or treatment for an eye disease or injury. He did not describe an injury at the time of the September 2015 DBQ. At his hearing, the Veteran testified that he had some type of shrapnel in his eyes and the muscle was getting tangled up and weakening. He related this to debris in his eyes from sand, ore, gas, etc., but denied a specific eye injury in service. The Board finds the Veteran's statements regarding an eye injury from debris during service not credible due to inconsistency with the objective evidence of record, facial plausibility, and self-interest. First, to the extent that the Veteran described this debris as shrapnel, the preponderance of the evidence is against a finding that the Veteran was exposed to an explosion during service that would expose him to shrapnel. Again, the record shows that the Veteran did not have combat service, and the Board finds any assertion that a non-combat Veteran would suffer an undocumented shrapnel injury is not credible. Second, the type of debris described by the Veteran, sand, ore, gas, etc., is consistent with materials to which a Persian Gulf Veteran likely would be exposed while serving overseas. As noted above, the Veteran did not serve in Southwest Asia. Nevertheless, Southwest Asia does not have a monopoly on sand or gas, and the Veteran did not specifically allege that this debris injury occurred in Southwest Asia. Third, the Veteran is essentially saying that he sustained an eye injury from debris during service that was significant enough to result in impairment of muscle function of the eye years later, but not significant enough to warrant in-service treatment. This is not consistent with the behavior expected from a reasonable person. Further, when the Veteran sought treatment for eye problems in January 2011 and February 2012, he was very specific in his eye complaints, which did not include having sustained shrapnel or some type of past eye injury. Rather, he complained of irritated red eyes, which he attributed to the use of a CPAP machine for the past eight months to a year. At the time of the February 2012 treatment, the examiner added, "No other ocular complaints," which the Board finds is inconsistent with experiencing debris in his eyes that caused muscle damage. A June 2008 VA treatment record showed that the Veteran's eyes were examined and that ocular muscles were "intact." These facts do not support a finding that the Veteran experienced eye problems during a period of active duty. Finally, the Veteran did not report this or any other type of eye injury until his Board hearing, after he had been denied service connection by the RO for failure to establish an in-service injury, event, or disease. As such, it was in the Veteran's self-interest to describe an in-service eye injury during his hearing. Thus, the Board finds the Veteran's statements regarding an eye injury from debris during service not credible and no in-service eye injury, event, or disease related to the eyes is established. While the Veteran believes his bilateral eye disability is related to a period of active duty, the Board reiterates that the preponderance of the evidence weighs against findings that and in-service injury, event, or disease occurred to the Veteran's eyes. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for a bilateral eye disability, and the claim is denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Houbeck 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.