Citation Nr: 21032654 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 12-12 101 DATE: May 27, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for cold injury residuals of the feet, to include left foot amputation residuals, is denied. Entitlement to service connection for prostate cancer is denied. Entitlement to service connection for peripheral vascular disease (PVD) is denied. Entitlement to service connection for osteoporosis is denied. Entitlement to service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence of record shows that the Veteran's back disability was not related to active service. 2. The preponderance of the competent and credible evidence of record shows that the Veteran's right hip disability was not related to active service. 3. The preponderance of the competent and credible evidence of record shows that the Veteran's left hip disability was not related to active service. 4. The preponderance of the competent and credible evidence of record shows that the Veteran's claimed cold injury residuals of the feet, to include left foot amputation residuals, were not related to active service. 5. The preponderance of the competent and credible evidence of record shows that the Veteran's prostate cancer was not related to active service. 6. The preponderance of the competent and credible evidence of record shows that the Veteran's peripheral vascular disease (PVD) was not related to active service. 7. The preponderance of the competent and credible evidence of record shows that the Veteran's osteoporosis was not related to active service. 8. The preponderance of the competent and credible evidence of record shows that the Veteran's bilateral hearing loss was not related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for claimed cold injury residuals of the feet, to include left foot amputation residuals, have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 5. [The criteria for service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 6. The criteria for service connection for peripheral vascular disease (PVD) have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. 7. The criteria for service connection for osteoporosis have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304. 8. Bilateral hearing loss disability was not incurred during active duty. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1956 to February 1958. He died in December 2014. The Veteran's surviving spouse has been substituted as the Appellant. These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a September 2012 hearing before a VA Decision Review Officer. A hearing transcript is of record. The Appellant appeared at a January 2017 videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. During the course of the appeal, in a February 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for tinnitus, representing a full grant of that benefit sought. Therefore, the issue of entitlement to service connection for tinnitus is no longer before the Board. This case was previously remanded for further development. In light of the research requests, the formal finding that the Veteran was rescued after being trapped in a blizzard on a mountain in Italy during the winter months of 1957 and 1958, and the further adjudicatory actions taken by the AOJ, the Board finds that there has been substantial compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. 1. Entitlement to service connection for a back disability 2. Entitlement to service connection for a right hip disability 3. Entitlement to service connection for a left hip disability 4. Entitlement to service connection for cold injury residuals of the feet, to include left foot amputation residuals 5. Entitlement to service connection for prostate cancer 6. Entitlement to service connection for peripheral vascular disease (PVD) 7. Entitlement to service connection for osteoporosis The Board notes that although some of the Veteran's service medical records have been associated with the record, the Veteran's service medical records are incomplete. In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to resolving reasonable doubt in favor of the claimant, where applicable. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Because of missing records, the analysis below has been undertaken with the heightened duty in mind. The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in the decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). The Appellant asserts that service connection for a lumbar spine disability, right and left hip disabilities, cold injury residuals of the feet, prostate cancer, peripheral vascular disease, and osteoporosis is warranted as the claimed disabilities were incurred as the result of traumatic events during active service, including cold injuries sustained when the Veteran was trapped on an Italian mountain with his Army unit and had to be rescued. The Veteran also previously submitted statements asserting that while he was on active duty, he jumped off a bench and injured his back and hips. As shown by medical treatment records, the evidence shows that during the development of the claim, Veteran had diagnoses of degenerative disc disease of the lumbar spine, residuals of a right hip replacement, left hip degenerative joint disease, gangrene and amputation of toes of the left foot, dry skin and foot fungus, thick toenails, residuals of prostate cancer, peripheral vascular disease, and osteoporosis. The question is whether those disabilities were caused by active duty. The Board finds that the preponderance of the evidence is against a finding that disabilities of the spine, bilateral hips, bilateral feet, prostate cancer, PVD, and osteoporosis were incurred in service. In February 2021, the AOJ made a formal finding that during the winter months of 1957 and 1958, the Veteran was trapped in a blizzard on a mountain in Italy and later rescued. Therefore, the Board accepts that the Veteran was likely exposed to cold temperatures while on active duty. Additionally, the Board accepts that the Veteran likely jumped off a bench at some point while he was on active duty, as such an action is observable through the senses and is consistent with expected activities of being on active duty. The Veteran's service separation examination report found that he had normal skin, spine, lower extremities, feet, genitourinary system, and vascular system. The Veteran indicated on a Report of Medical History completed in association with the service separation examination that he did not experience swollen or painful joints, arthritis, rheumatism, or cramps in the legs. July and December 2010 private treatment records contain the Veteran's self-report that he experienced pain in the lower back and hips related to a time when he jumped off a bench when he was in the service in 1956. At a June 2013 VA cold injury protocol examination, the examiner specified that the Veteran did not now have nor had he been diagnosed with any cold injuries. The Veteran told the examiner that while he was on active duty, he had an experience when he was in the mountains of Italy overnight. The Veteran stated that he was buried in snow, and the Veteran stated that his feet and buttocks were frostbitten. After performing an examination, the examiner stated that he was not sure that he found any significant cold injury residuals. The examiner specified that the Veteran had bilateral lower extremity deep vein thrombosis unrelated to cold injury which caused the edema. It was noted that onychomycosis was common in the population at large and not necessarily proof of a cold injury. The examiner explained that osteopenia and osteoarthritis were common in the Veteran's age group, and Vitamin D insufficiency was also a predisposing factor. The examiner stated that hip degenerative joint disease was not a joint commonly affected by cold injury. While there were punched out lesions in the Veteran's hands, the examiner found it odd that there were no lesions in the feet which reportedly got the brunt of the reported cold injury. The examiner found no evidence of Reynaud's or cold intolerance involving the feet or hands. The examiner stated that the Veteran had risk factors for vascular disease which included elevated cholesterol and hypertension. The examiner noted the Veteran's self-report that his feet sweated a lot, but the examiner did not objectively observe sweaty feet on examination on a hot day. At the January 2017 Board hearing, the Appellant's daughter, S.L., stated that she was a licensed practical nurse (LPN). She stated that as a medical professional, it was her opinion that the Veteran's disabilities were at least as likely as not related to service. She stated that the Veteran should not have had such severe arthritis, thickening toenails, and dark legs from poor circulation. After considering the evidence of record, the Board finds that service connection is not warranted for a lumbar spine disability, right and left hip disabilities, cold injury residuals of the feet, prostate cancer, peripheral vascular disease, and osteoporosis. Arthritis, an organic neurologic disease of feet, and tumors were not shown within one year following separation from service. Consequently, presumptive service connection is not warranted. Concerning direct service connection, while the Veteran had a diagnosed lumbar spine disability, right and left hip disabilities, disabilities of the feet, prostate cancer, peripheral vascular disease, and osteoporosis during the development of the claim, the most probative evidence of record does not associate those disabilities with the Veteran's service. In the course of receiving treatment at VA medical centers and through private treatment providers, various treatment providers have indicated that the Veteran had various cold injuries and back and hip injuries from jumping off a bench while on active duty, such as in the July and December 2010 private treatment records cited above. The Board has considered the various treatment records, along with the opinion expressed by the Appellant's daughter, S.L, L.P.N., at the January 2017 hearing. However, the examiners who created those records did not have access to the service medical records. They did not comment on the service separation report that showed a normal skin, spine, lower extremities, feet, genitourinary system, and vascular system. They also did not comment on the post-service treatment records or alternative etiologies for the Veteran's disabilities. It appears that those treatment records and testimony from S.L., L.P.N., were based on the Veteran's self-reported history, and a medical evaluation that is merely a recitation of a Veteran's self-reported and unsubstantiated history has no probative value. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999); Swann v. Brown, 5 Vet. App. 229 (1993); Godfrey v. Brown, 8 Vet. App. 113 (1995). Additionally, in their treatment notes, they do not provide the level of in-depth discussion as the June 2013 VA examiner. The Board finds the June 2013 VA examiner's opinion to be the most probative evidence of record. The June 2013 VA examination report outlines the reasons why the examiner felt that the current disabilities were not related to service, to include the Veteran's exposure to cold. The examiner considered the Veteran's self-report, the service medical records, the post-service medical records, and explained the factors behind the determinations that the Veteran did not have any cold injury residuals. Significantly, the examiner provided alternative etiologies. The Board finds the June 2013 VA examination report to be the most persuasive evidence of record. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the examiner reaches. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board has considered the Veteran's lay statements. However, to whatever extent the Veteran's statements may be construed as asserting the presence of a continuity of symptomatology of the claimed disabilities from service through the present, those statements are contradicted by the Veteran's own notations on a Report of Medical History completed at the end of service. The Veteran indicated on that Report of Medical History that he did not experience swollen or painful joints, arthritis, rheumatism, or cramps in the legs. Significantly, the Veteran completed that Report of Medical History after the conceded cold exposure and after he jumped off of a bench while on active duty. The Board assigns more probative weight to the Veteran's notations on the Report of Medical History completed at the end of service than to lay statements made many years later in connection with the current claims as the Report of Medical History was completed contemporaneous with the Veteran's active duty and is more likely to reflect an accurate representation of the Veteran's symptoms (or lack thereof) at the conclusion of active duty. Accordingly, the most probative evidence of record weighs against a continuity of symptomatology of the claimed disabilities from the Veteran's service through the time of the claim. Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claims. The preponderance of the evidence is against a finding of a causal connection between the Veteran's service and the diagnosed lumbar spine disability, right and left hip disabilities, disabilities of the feet, prostate cancer, peripheral vascular disease, and osteoporosis. The Board is sympathetic to the Appellant in that it is clear she sincerely believes the Veteran's disabilities were directly related to service. However, the most probative evidence of record does not support that contention. Although the Board is appreciative of the Veteran's faithful and honorable service to our country, because the preponderance of the evidence is against the claims, the claims must be denied. As the preponderance of the evidence is against the claims of entitlement to service connection for a lumbar spine disability, right and left hip disabilities, disabilities of the feet, prostate cancer, peripheral vascular disease, and osteoporosis, the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. Entitlement to service connection for bilateral hearing loss The available service medical records are negative for any complaints or treatment of bilateral hearing loss. The service separation examination report found that the Veteran had normal ears. Whispered voice testing gave results of 15/15 for both ears. The Veteran indicated on a Report of Medical History completed in association with the service separation examination that he did not experience ear trouble. At a June 2013 VA examination, the Veteran's pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 25 35 55 60 LEFT 15 15 15 30 40 Speech discrimination scores were 88 percent for the right ear and 92 percent for the left ear using the Maryland CNC Word List. The examiner diagnosed bilateral sensorineural hearing loss and opined that the Veteran's hearing loss was not at least as likely as not caused by or a result of service. The examiner commented that while there was no pure tone data from the service separation examination report, it was most likely that the Veteran's hearing loss would be much poorer now, had its onset been in service. At the January 2017 Board hearing, the Appellant's daughter, S.L., stated that she was a licensed practical nurse (LPN). She stated that as a medical professional, it was her opinion that the Veteran's disabilities were at least as likely as not related to service. The June 2013 VA audiological findings support the conclusion that the Veteran had bilateral hearing loss for VA compensation purposes, as the speech discrimination scores for both ears were less than 94 percent. 38 C.F.R. § 3.385. However, none of the Veteran's audiological treatment providers have given any indication that the Veteran's claimed hearing loss could be related to active duty service. The evidence which provides any connection between the Veteran's claimed hearing loss and service came the Veteran himself and an opinion from his daughter. It is to be noted that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran was competent to report his symptoms of decreased hearing, as those are symptoms capable of observation through the senses. However, in June 2013, a VA examiner reviewed the claims file and opined that the Veteran's hearing loss was less likely than not incurred in or caused by service. The Board finds the VA examiner's opinion to be more probative than the Veteran's assertions and the opinion of S.L., L.P.N.. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The opinion of the VA examiner is highly probative because it was supported by rationale and was provided by a trained audiologist. Notably, S.L. is not an audiologist, and she gave no rationale to support the opinion that the Veteran's hearing loss was at least as likely as not related to service. The VA examiner specifically identified why she felt the Veteran's hearing loss was not related to service. Accordingly, the VA examiner's opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion reached. As is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Although the Board is appreciative of the Veteran's faithful and honorable service to our country, considering the record before the Board which shows that the preponderance of the evidence is against a finding that a bilateral hearing loss disability is related to service, the claim must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.