Citation Nr: 21041481 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-18 137 DATE: July 9, 2021 ORDER Entitlement to service connection for a right ear hearing loss is denied. Entitlement to service connection for bilateral leg disability, other than peripheral neuropathy, to include restless leg syndrome, is denied. FINDINGS OF FACT 1. The Veteran does not have a current hearing loss disability in his right ear. 2. The Veteran does not have a current disability of the bilateral legs, to include restless leg syndrome, other than peripheral neuropathy, which is already service connected. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for right ear hearing loss has not been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing entitlement to service connection for a bilateral leg disability (other than peripheral neuropathy), including restless leg syndrome, has not been met. 38 U.S.C. §§ 1110, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from August 1969 to February 1972, including service in the Vietnam War. The Veteran had additional service with the Army National Guard of Minnesota, and the Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Then in April 2018 the Veteran withdrew his request for a hearing before the Board. See Correspondence received April 2018. In September 2018, the Board remanded the claims for development including VA opinions. The Veteran was afforded new opinions. The RO also sent a letter to further develop the records and tried to obtain any missing records. See DD 2963 Service Treatment Records Transfer or Certification received October 2019, Subsequent Development Letter dated June 2019. The RO obtained records from various VA treatment facilities. See CAPRI received September 2019 and October 2020. The RO also sent a letter to the Veteran in March 2021 explaining that no additional National Guard Records were obtained. See Correspondence dated February 2021. After a Supplemental Statement of the Case (SSOC), the claims are back before the Board. The Board notes that at the same time as the SSOC, a rating decision was issued granting the Veteran service connection for left ear hearing loss. See Rating Decision -Narrative received March 2021. As to the remand, the Board finds that the foregoing reflects substantial compliance with the September 2018 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It does not appear that the Veteran responded to the development letter or other correspondence about records. Additionally, the Veteran has a duty to assist and cooperate with VA in developing evidence the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board will adjudicate the claim currently on appeal. No other duty to notify or duty to assist issues have been raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). SERVICE CONNECTION Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Hearing loss and tinnitus are considered chronic disease under 38 C.F.R. § 3.309(a) because these conditions are organic disorders of the nervous system. For these chronic diseases to be presumed service-connected, under this provision, they must manifest to a degree of 10 percent within one year from date of termination of such service. See 38 C.F.R. § 3.307(a)(3). A disability, with no causal relationship ("nexus") to an in-service event can be considered service-connected by being proximately due to or aggravated by a service-connected disease or injury. 38 § C.F.R. §3.310(a)-(b). To establish secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing a link ("nexus") between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. 1. Entitlement to service connection for right ear hearing loss is denied. The Veteran contends that he is entitled to service connection for bilateral hearing loss. The Veteran has been granted service connection for left ear hearing loss. However, entitlement to service connection for right ear hearing loss is denied. The Veteran has normal hearing in his right ear, and without a current disability service connection cannot be granted. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the 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 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory 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. After reviewing the evidence, the Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss for VA purposes and has not had right ear hearing loss at any time during the pendency of the claim. For example, in the August 2020 VA examination, pure tone thresholds, in decibels (dB), were as follows: Aug. 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 15 15 15 14 98% LEFT 30 35 65 80 53 98% These results show that the Veteran does not have a current hearing loss disability in his right ear for VA purposes. See 38 C.F.R. § 3.385. The Board finds that the August 2020 VA examination is competent, credible, and probative. The examiner's report shows that the examiner conducted a thorough review of the historical medical evidence of record. The report stated that the results were valid for rating. The examiner used the Word Discrimination Score (Maryland CNC Word List) for the Veteran, as was proper. Furthermore, the Board has found no evidence or contention of record questioning the accuracy of the audiometry results identified during this examination. The Board acknowledges that the Veteran may experience subjectively diminished hearing in his right ear, however, there is no evidence of record to suggest that the Veteran in this case is competent to provide a hearing loss diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As noted above, the Veteran was granted service connection for hearing loss in his left ear. Consequently, the Board gives more probative weight to the competent medical evidence of record in concluding that the Veteran does not have a current hearing loss disability in his right ear. Upon review of the entire record, the Board finds the preponderance of the evidence is against the Veteran's claim. As such, the Veteran's appeal for service connection for right ear hearing loss is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral leg disability other than peripheral neuropathy, to include restless leg syndrome is denied. The Veteran requested service connection for bilateral restless leg syndrome secondary to diabetes type II. See VA 21-0820 received December 2011, Form 9 dated May 2014. He also contended that his restless leg syndrome should be associated with his post-traumatic stress disorder. See VA 21-4138 received May 2012. The Board notes that the Veteran has already received service connection for peripheral neuropathy in the lower extremities secondary to diabetes mellitus type II. See Rating Decision Narrative received March 2012. In order to qualify for service connection for a bilateral leg disability, other than peripheral neuropathy, first, the Veteran must have a present disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In February 2012, the Veteran had a VA examination. The examiner was asked if the Veteran had restless leg syndrome as a result of his diabetes. The examiner opined that the Veteran had not been diagnosed with restless leg syndrome. However, the examiner reported that the Veteran appeared to be experiencing some muscle spasms which likely emanated from his back. See VA examination received February 2012. The examiner further noted that imaging found that the Veteran had degenerative and postoperative changes in his lumbar spine. Id. In March 2015, VA records stated that the Veteran had not been diagnosed with restless leg syndrome, but the Veteran stated his legs jumped sometimes and he had severe leg cramps from time to time. The Veteran was diagnosed with peripheral neuropathy affecting the lower extremities, combined with what was most likely radiculopathy affecting multiple lumbar nerve roots or lumbar stenosis. See CAPRI received April 2015. Then in August 2020, the Veteran had another VA examination. See C&P Exam received August 2020. After an in-person examination, the examiner stated that the Veteran had been diagnosed with a history of a deep vein thrombosis (DVT) in 2012. As to the, DVT, the Veteran was no longer on anticoagulants and reported that all symptoms had resolved. The Veteran did not have a diagnosis of restless leg syndrome. The examiner stated that the Veteran was diagnosed with diabetic peripheral nerve condition, but that the Veteran was not diagnosed with another additional nerve condition. The examiner also stated that the Veteran reported at the examination that he had never been diagnosed with restless leg syndrome. Id. The examiner opined that there was no evidence of a diagnosis of restless leg syndrome or of some other chronic leg condition, not already service connected. Therefore, service connection either on a direct or secondary basis cannot be granted. Id. The Board finds that the August 2020 VA examination is competent, credible, and probative. The examiner's report shows that the examiner conducted a thorough review of the historical medical evidence of record. The record is unclear as to whether the Veteran still believes he has another chronic leg condition, other than peripheral neuropathy, caused by service or secondary to his service-connected diabetes mellitus type II or PTSD. As the recent VA examiner reported that the Veteran stated he had never been diagnosed with restless leg syndrome. See C&P Exam received August 2020. However, even if the Veteran believed that he had another leg condition, other than peripheral neuropathy, there is no evidence of record to suggest that the Veteran in this case is competent to provide a diagnosis as to restless leg syndrome or another chronic leg condition. 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 of record in concluding that the Veteran does not have a current chronic leg disability, other than peripheral neuropathy. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for a bilateral leg disability other than peripheral neuropathy, to include restless leg syndrome, must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.