Citation Nr: 21028915 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-20 005 DATE: May 12, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for left foot toenail fungus is denied. Entitlement to service connection for right foot toenail fungus is denied. Entitlement to service connection for a sleep disorder is denied. Entitlement to service connection for restless leg syndrome (RLS) is denied. Entitlement to service connection for a left lower extremity neurological disability is denied. Entitlement to service connection for a respiratory disability, claimed as right lung collapse is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. INTRODUCTION The Veteran served on active duty from February 1967 to December 1970, with additional service in the U.S. Navy Reserve. In November 2019, the Veteran attended a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in February 2020, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. FINDINGS OF FACT 1. Throughout the entire rating period, the Veteran's hearing impairment has been no worse than Level I in the right ear and Level II in the left ear. 2. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that left foot toenail fungus began during active service, or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that right foot toenail fungus began during active service, or is otherwise related to an in-service injury or disease. 5. The preponderance of the evidence is against finding that the Veteran's claimed sleep disorder began during active service, or is otherwise related to an in-service injury or disease. 6. Restless leg syndrome has not been present at any time during the pendency of this claim. 7. A left lower extremity neurological disability has not been present at any time during the pendency of this claim. 8. There is no evidence of a current disability or residual functional impairment associated with the Veteran's in-service right lung hemo-pneumothorax. 9. A right hip disability has not been present at any time during the pendency of this claim. 10. The preponderance of the evidence is against finding that the Veteran's claimed left knee disability began during active service, or is otherwise related to an in-service injury or disease. 11. The preponderance of the evidence is against finding that the Veteran's claimed right knee disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for service connection for left foot toenail fungus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 4. The criteria for service connection for right foot toenail fungus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 5. The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 6. The criteria for service connection for restless leg syndrome have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 7. The criteria for service connection for a left lower extremity neurological disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 8. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 9. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 10. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 11. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board finds VA has complied with its duty to assist the Veteran in the development of his claims. In this respect, all available service treatment records (STRs) and post-service medical evidence identified by the Veteran have been obtained. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in November 2019. Additionally, the Veteran was provided appropriate VA examinations to address his claimed disabilities in March 2016, February 2017, and March 2020. Further, the RO obtained addendum medical opinions following the most recent examinations in July 2020. Neither the Veteran nor his representative have identified any outstanding, existing evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the claims decided herein. Accordingly, the Board will address the merits of the Veteran's claims. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Increased Rating for Hearing Loss Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIa, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). "Puretone threshold average" as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85 (d). Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (a) When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz ) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the puretone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. By way of background, the Veteran initiated a claim for service connection for bilateral hearing loss in January 2016. In the April 2016 rating decision on appeal, a noncompensable disability rating was assigned. In response to his claim, the Veteran was afforded an initial VA audiological evaluation in March 2016; the examiner reviewed the evidence of record and noted the Veteran's history. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 40 70 85 LEFT 10 15 40 65 70 Speech recognition was 96 percent in the right ear and 96 percent in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and Level I Roman numeral designation for the left ear. Application of a Level I and Level I designation to Table VII results in a noncompensable rating. The readings reported in this evaluation did not meet the requirements for evaluation as an exceptional pattern of impairment. The Veteran was provided a second VA audiological evaluation in March 2020; the examiner also reviewed the evidence of record and noted the Veteran's history. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 45 75 85 LEFT 15 20 45 70 75 Speech recognition was 92 percent in the right ear and 90 percent in the left ear. Applying the values above to Table VI results in a Level I Roman numeral designation for the right ear and Level II Roman numeral designation for the left ear. Application of a Level I and Level II designation to Table VII results in a noncompensable rating. The readings reported in this evaluation also did not meet the requirements for evaluation as an exceptional pattern of impairment. The Court has held that, "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In accordance with this decision, the March 2016 and March 2020 examiners stated the Veteran has difficulty understanding conversations as well as birds chirping. In this respect, the examiners indicated at times the Veteran must ask people to repeat themselves. To date, the Veteran has not provided any additional treatment records relative to his bilateral hearing loss. On review of the file, it is evident the criteria for a compensable rating under Diagnostic Code 6100 are not met. Although the audiological evaluations clearly show the Veteran has hearing loss, the hearing loss has not yet met the compensable level under the rating schedule. Thus, a compensable rating for bilateral hearing loss is not warranted under the schedular criteria. Service Connection Claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability...in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In January 2016, the Veteran initiated claims for entitlement to service connection for hypertension, bilateral foot toenail fungus, a sleep disorder, restless leg syndrome, a respiratory disability, a left lower extremity neurological disability, a right hip disability, and bilateral knee disabilities. Since the resolution of these claims involves the application of identical law to similar facts, in the interest of judicial economy these issues will be addressed together. During his November 2019 hearing, the Veteran asserted his RLS, respiratory disability, left leg neurological disorder, right hip disability, and bilateral knee disabilities are the result of his June 6, 2003 fall. The Veteran also asserted his claimed sleep disorder is consequentially associated with his service-connected disabilities. Initially, the Board observes the Veteran had a period of active duty with the U.S. Navy from February 1967 to December 1970. The evidence of record also shows the Veteran received orders and attended an active duty for training (ADT) with the U.S. Navy Reserve from May 23, 2003 to July 11, 2003. During that ADT period, on June 6, 2003, the Veteran sustained several injuries resulting from a fall from a ladder. The U.S. Navy Reserve subsequently determined his fall and injuries were incurred in the line of duty. His service records indicate he received an extension of his ADT drilling order and line of duty benefits until July 6, 2004. In this respect, the Board notes active military, naval, and air service is defined under 38 C.F.R. § 3.6 as active duty, any period of active duty for training 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 training 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 which occurred during such training. Next, the Board notes the cornerstone of any VA disability compensation claim is the presence of a current disability. In this respect, the Board is cognizant of the recent holding in Saunders v. Wilkie, which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, pain alone does not, in and of itself, constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Throughout the period of the claim, the Veteran has received limited outpatient treatment at the Valley Coastal Bend VAMC. The Board has carefully reviewed these records, but has not found a single instance in which the Veteran was diagnosed or treated for the RLS, a respiratory disability, a left leg neurological disorder, a right hip disability, or bilateral toe nail fungus. He has also received private treatment with Dr. M.T. and Nurse Practitioner J.G., but has neither provided those records nor provided authorization to obtain those records. In addition, the Board has scrupulously reviewed the Veteran's February 2017 VA back and respiratory conditions examination reports, as well as his March 2020 VA peripheral nerve conditions, hip conditions, central nervous system diseases, respiratory conditions, and skin disease examination reports. Following comprehensive testing, these reports fail to show the Veteran warranted a diagnosis of RLS, a respiratory disability, a left leg neurological disorder, a right hip disability, or bilateral toenail fungus. The Board does acknowledge the Veteran was noted to have sustained a right hemo-pneumothorax, as well as flail chest, following his June 2003 ladder fall; however, pulmonary function testing performed in February 2017 was entirely normal. As such, no residual respiratory disability is shown. Likewise, neurological testing performed during the Veteran's February 2017 VA back examination and March 2020 VA peripheral nerves and central nervous system examinations revealed no objective evidence of a left lower extremity neurological disorder or RLS. Similarly, testing performed during the Veteran's March 2020 VA hip examination revealed insufficient evidence to warrant a current right hip disability. Though the Veteran has asserted he experiences pain and numbness in his legs and pain in his hip, the most probative evidence fails to show either a currently diagnosed disorder or functional impairment resulting from the Veteran's claimed manifestations. Additionally, with the exception of his treatment for an acute hemo-pneumothorax with flail chest following his June 2003 fall, the Veteran's STRs simply provide no evidence demonstrating he was treated for RLS, a respiratory disability, a left leg neurological disorder, a right hip disability, or bilateral toe nail fungus in the treatment records following his ladder fall. Nor is there evidence indicating any of the Veteran's claimed disabilities were diagnosed, treated, or are in any other way related to his February 1967 to December 1970 period of active duty. With respect to the Veteran's claims for hypertension, a sleep disorder, and bilateral knee disabilities, the Board notes the Veteran has been diagnosed with essential hypertension, sleep apnea, and bilateral knee strains. However, the March 2020 VA examiner found these disabilities were less likely than not incurred in service, caused by any service-connected disability, or aggravated by any service-connected disability. A review of the Veteran's STRs does not indicate he was ever treated for or diagnosed with hypertension, sleep impairments, or knee disabilities on active duty. Further, the examiner found neither the Veteran's sleep apnea nor hypertension would be caused by his service-connected disabilities, because medical literature provides no support for such theories. In particular, the examiner explained that musculoskeletal disabilities and traumatic brain injury do not cause or aggravate hypertension. Rather, the examiner noted several known risk factors which cause or contribute to high blood pressure, none of which is related to the Veteran's service-connected disabilities. Likewise, the examiner explained sleep apnea is a mechanical obstruction of the airway, which is not caused by or related to the Veteran's service-connected disabilities. VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107 (b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, the Board has carefully considered the Veteran's reports. The Board acknowledges the Veteran's implicit assertion that he does in fact have the claimed disabilities. The Veteran is not, however, shown in this case to have the training, medical expertise, or credentials to competently diagnose the claimed conditions. See King v. Shinseki, 700 F.3d 1339 (2012). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). For example, a veteran is competent to state that he experiences symptoms that may be associated with a disability, such as leg pain or trouble breathing, but he is not competent to diagnose himself with a neurological or respiratory disability. A review of letters provided by the Veteran's private clinicians in December 2019 also fails to show the Veteran has been diagnosed with RLS, a respiratory disability, a left leg neurological disorder, a right hip disability, or bilateral toenail fungus. As discussed above, the overwhelming evidence fails to show these disabilities have been present during the period of the claims, the claims must be denied. Additionally, the overwhelming evidence fails to show the Veteran's claimed hypertension, sleep disorder, and bilateral knee disabilities are etiologically related to his periods of active service. In reaching these decisions, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is significantly against the claims. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.