Citation Nr: 21028885 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-14 258 DATE: May 12, 2021 ORDER Service connection for left ear hearing loss is denied. Service connection for right ear hearing loss is denied. Service connection for tinnitus is denied. Service connection for pes planus is denied. Service connection for disabilities of the knees is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has had a left ear hearing loss disability at any time during or proximate to the pendency of his claim. 2. The preponderance of the evidence is against a finding that the Veteran's right ear hearing loss disability began during service or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against a finding that the Veteran's tinnitus began during service or is otherwise related to an in-service injury or disease. 4. The Veteran's pes planus, which pre-existed active service, is not shown to have undergone a permanent or chronic increase in severity during service. 5. The preponderance of the evidence is against a finding that the Veteran has had a disability of either knee at any time during or proximate to the pendency of his claim that began during service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an award of service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for an award of service connection for tinnitus have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for an award of service connection for pes planus have not been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 5. The criteria for an award of service connection for disabilities of the knees have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1982 to November 1984. He also had service in the United States Marine Corps Reserve, to include an initial period of active duty for training from July 1978 to December 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, VA. In August 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In November 2019, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term "disability" as used for VA purposes generally contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). If a disorder noted at the time of a veteran's examination, acceptance, and enrollment into service undergoes a chronic or permanent increase in severity during service, it is presumed that the disability was aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). This presumption can be rebutted only by clear and unmistakable evidence demonstrating that the increase was due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). 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 C.F.R. § 3.306(b). If a veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding arthritis and organic diseases of the nervous systemto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for left ear hearing loss is denied. The Veteran seeks to establish service connection for left ear hearing loss. He believes that the condition can be attributed to noise exposure in service. Specific to claims for service connection for hearing loss, impaired hearing is considered a "disability" for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. Here, the Veteran was afforded a VA audiology examination in January 2020. He was found to have puretone thresholds of 15, 15, 25, 20, and 25 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 Hertz, respectively, and a left ear speech discrimination (Maryland CNC) score of 98 percent. There is nothing to suggest that his left ear hearing loss has increased in severity since the time of the testing in January 2020, so as to warrant re-examination, and no other audiometric evidence has been received in connection with his claim. In light of the foregoing, the Board must conclude that the preponderance of the evidence is against the Veteran's claim for service connection for left ear hearing loss. Simply put, the evidence does not establish that he has a hearing loss disability of the left ear as defined by VA regulation. 38 C.F.R. § 3.385. In arriving at this conclusion, the Board observes that the Veteran is competent to offer statements with respect to symptoms of diminished hearing. However, the diagnosis of a hearing "disability," as VA defines that term, is a medically complex matter requiring the administration and interpretation of audiometric test results. Inasmuch as the Veteran is not shown to have the requisite medical knowledge, he is not competent to render a diagnosis. Accordingly, and because the competent evidence of record does not otherwise establish the presence of a left ear hearing loss disability, the claim must be denied. 2. Service connection for right ear hearing loss is denied. The Veteran also seeks to establish service connection for right ear hearing loss. As with the left ear, he believes that the condition can be attributed to noise exposure in service. There is no dispute that the Veteran has a current right ear hearing loss disability as defined by VA. The report of the January 2020 VA audiology examination clearly reflects, among other things, that he had an auditory threshold of 50 decibels in the right ear at 3000 Hertz at the time of that examination. 38 C.F.R. § 3.385. Nor is there any real dispute that the Veteran was exposed to hazardous noise during service. The record clearly reflects that his military occupational specialty (MOS) was aircraft electrical systems technician. At the hearing, he essentially testified that he was exposed loud noises when working around helicopters. His statements in that regard are wholly consistent with the circumstances and conditions of his service. As to the nexus, or link, between the Veteran's currently shown disability and service, the report of his service separation examination, dated in September 1984, reflects that his auditory acuity was within normal limits at that time. Puretone thresholds at all tested frequencies were less than 20 decibels. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (indicated that thresholds above 20 decibels are indicative of at least some degree of hearing loss). Following an examination and review of the claims file, the January 2020 VA examiner opined that it was less than 50 percent likely that the Veteran's right ear hearing loss was caused by or a result of an event in service. In support of that conclusion, the examiner noted that the Veteran's service records indicated that he had normal hearing with no significant threshold shifts at the time of his separation examination in September 1984, and that there were no documented complaints of hearing loss during service or within a year of leaving service. The VA examiner's opinion was based on an accurate medical history, with review of the record, and includes clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the opinion is probative. No contrary opinions are of record. The Board has considered the Veteran's statements in this regard. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to the etiology of hearing loss. In addition, to the extent that his testimony can be interpreted as alleging onset of a chronic hearing disability during service, such is inconsistent with the report of his service separation examination, which, as noted, reflects that his hearing was found to be within normal limits at that time. The most probative evidence of record with respect to etiology is the January 2020 VA examiner's opinion. After a full review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim. No medical opinion evidence has been received which links his right ear hearing loss to service. The evidence does not establish that the hearing loss disability in the right ear became manifest to a compensable degree during the one-year period following his separation from service, or that symptoms of hearing loss have been continuous since service. In addition, as noted, even conceding in-service noise exposure, a VA examiner has opined that it is unlikely that the current right ear hearing loss is related to service. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The appeal of this issue must be denied. 3. Service connection for tinnitus is denied. The Veteran seeks to establish service connection for tinnitus. He maintains that his tinnitus is also linked to his exposure to noise during his military service. There is no real dispute that the Veteran has a current disability. As a lay person, he is competent to report that he experiences tinnitus. As previously noted, there is also no real dispute that the Veteran was exposed to hazardous noise during service. His statements in that regard are wholly consistent with the circumstances and conditions of his service. As to the nexus, or link, between the Veteran's currently shown disability and service, the Board notes that he has not alleged that his tinnitus had its onset in service. During the hearing in August 2019, he testified that he had first noticed tinnitus "[p]robably about 10 years ago or better." During the January 2020 VA audiology examination, he reported onset of tinnitus 15 to 20 years earlier, which would be several years after he was separated from service. Following an examination and review of the claims file, the January 2020 VA examiner opined that it was less than 50 percent likely that the Veteran's tinnitus was caused by or a result of an event in service. In support of that conclusion, the examiner noted that the Veteran's service records indicated that he had normal hearing with no significant threshold shifts at the time of his separation examination in September 1984; that there were no documented complaints of hearing loss, tinnitus, or acoustic trauma during service or within a year of leaving service; that the Veteran reported onset of tinnitus at least 15 years after his discharge from service; and that the literature did not support delayed-onset tinnitus due to noise-induced cochlear damage. The VA examiner's opinion was based on an accurate medical history, with review of the record, and includes clear conclusions and supporting data. Nieves-Rodriguez, supra. Accordingly, the opinion is probative. No contrary opinions are of record. While the Veteran is competent to testify as to the onset, presence, and continuity of tinnitus symptoms, which are observable by a lay person, he has not claimed that his tinnitus had its onset in service or that he has had continuity of symptoms since service. Nor is there any evidence that tinnitus was manifested to a compensable degree within one year of service. In addition, there is nothing in the record to establish that the Veteran has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to the etiology of tinnitus that began many years after service. The most probative evidence of record with respect to etiology is the January 2020 VA examiner's opinion. In light of the foregoing, the Board must find that the preponderance of the evidence demonstrates that the Veteran's tinnitus is not related to service. The appeal of this issue is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Service connection for pes planus is denied. The Veteran seeks to establish service connection for pes planus on the basis of in-service aggravation. During the hearing in August 2019, he acknowledged that he had flat feet before he entered his period of active service in the Marine Corps. As an initial matter, the Board accepts for analytical purposes that the Veteran has pes planus currently. Although no medical evidence has been received to reflect a diagnosis, applicable caselaw indicates that flat feet is a condition that is capable of lay observation. The Board also finds that the Veteran's flat feet pre-existed his entry onto active duty. The report of his July 1982 service entrance examination expressly notes the presence of flat feet (pes planus). Therefore, the presumption of soundness does not apply. As to whether the Veteran's flat feet were permanently or chronically aggravated during service, the Board remanded the Veteran's case in November 2019 for purposes of obtaining a medical examination and opinion with respect to in-service aggravation. The record reflects that the examination was scheduled, but that the Veteran did not report. Although notified of the consequences of his failure to report in a July 2020 supplemental statement of the case, he has not alleged nonreceipt of the notice of the examination or otherwise provided an explanation of good cause for his failure to appear. Accordingly, his claim must be decided on the evidence otherwise of record. 38 C.F.R. § 3.655(b). Based on the evidence that is currently available, the Board must find that the preponderance of the evidence is against a finding that the Veteran's flat feet were permanently or chronically aggravated during service. Although the Veteran has noted a lack of treatment for his flat feet during service, he has not explicitly alleged that the condition underwent a chronic or permanent worsening during service. Nor does the evidence support such a finding. Significantly, when he was examined for service separation in September 1984, it was expressly noted that the condition was asymptomatic and NCD (not considered disabling). In arriving at this conclusion, the Board has considered the Veteran's statements. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to whether his flat feet underwent a permanent or chronic worsening during service, beyond the natural progression of the condition. In addition, to the extent that his testimony can be interpreted as alleging a permanent or chronic worsening during service, such is inconsistent with the report of his service separation examination, which, as noted, reflects that the condition was asymptomatic at that time. In light of the foregoing, the claim for service connection for pes planus must be denied. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 5. Service connection for disabilities of the knees is denied. The Veteran seeks to establish service connection for disabilities of the knees. During the August 2019 hearing, he testified that he began having problems with his knees during service while running and climbing. He stated that he did not seek treatment because he was concerned that he might be advised to undergo surgery. As an initial matter, the Board notes that it is not entirely clear whether the Veteran has a current disability of either knee. Although he has reported having past difficulties with his knees, to include having undergone physical therapy therefor, the records of his reported prior treatment, while sought, are not available for review. No current diagnosis is of record, and while the Veteran has testified that he had had problems with his knees for a long time, he has not expressly asserted that the issues with his knees cause functional impairment of earning capacity. Assuming for analytical purposes that the Veteran does, in fact, have a cognizable disability of both knees, the further question presented for the Board's consideration is whether there is competent evidence of a nexus, or link, between the Veteran's disability and an injury or disease in service. In that regard, the Board finds that the preponderance of the evidence is against his claim. In November 2019, the Board remanded the Veteran's case for purposes of obtaining a medical examination and opinion with respect to whether his reported knee disabilities were related to service. The record reflects that the examination was scheduled, but that the Veteran did not report. Although notified of the consequences of his failure to report in a July 2020 supplemental statement of the case, he has not alleged nonreceipt of the notice of the examination or otherwise provided an explanation of good cause for his failure to appear. Accordingly, his claim must be decided on the evidence otherwise of record. 38 C.F.R. § 3.655(b). Based on the evidence that is currently available, the Board must find that the preponderance of the evidence is against a finding that the Veteran's claimed knee disabilities are related to service. The evidence shows that he sustained contusions of the knees during an accident in July 1981, prior to his entry onto active duty. Thereafter, with the exception of flat feet, his lower extremities were found to be normal on examination for active service entry in July 1982. When he was examined in July 1984, he reported having, or having had, cramps in his legs. However, there was no indication as to whether the cramps he was reporting at that time involved his knees and, if so, whether the report of cramps was a reference to the contusions he had suffered to his knees in the civilian accident in July 1981 or to something that he experienced during service. Significantly, when he was later examined for service separation in September 1984, his lower extremities were found to be normal with the exception of the finding of flat feet. In arriving at this conclusion, the Board has considered the Veteran's statements. However, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to whether his currently reported knee problems are related to the jumping and climbing he did in service. In addition, the record does not reveal that he has ever been diagnosed with a chronic disease of the knee, such as arthritis. 38 C.F.R. § 3.309(a). As such, there is no evidentiary basis for establishing service connection based on continuity of symptomatology. See Walker, supra. In light of the foregoing, the claim for service connection for disabilities of the knees must be denied. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, Associate 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.