Citation Nr: 22013489 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-22 245 DATE: March 9, 2022 ORDER Service connection for a right ankle disability (claimed as a sprain and shrapnel wound) is denied. Service connection for a skin disability due to herbicide exposure (claimed as a full body rash) is denied. Service connection for bilateral lower extremity peripheral neuropathy due to herbicide exposure is denied. REMANDED The issue of an initial compensable rating for bilateral hearing loss since November 2, 2015 is remanded. FINDINGS OF FACT 1. There is no probative evidence indicating that the Veteran's current right ankle arthritis was caused by an in-service injury, disease, or event; or that arthritis manifested to a compensable degree within one year of service separation. 2. There is no competent evidence indicating that the Veteran has a current diagnosis of a skin disability caused by exposure to herbicides or any other in-service disease, injury, or event. 3. There is no competent evidence indicating that the Veteran has a current diagnosis of bilateral lower extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.309. 2. The criteria to establish service connection for a skin disability due to herbicide exposure have not been met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria to establish service connection for bilateral lower extremity peripheral neuropathy due to herbicide exposure have not been met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1966 to September 1968. He served in the Republic of Vietnam. In November 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a discussion with the Veteran towards substantiating the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The transcript is in the record. The Board of Veterans' Appeals (Board) applies the law enacted by Congress and published in Title 38, United States Code ("38 U.S.C."); regulations established by VA and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). Service Connection VA awards service connection for disabilities resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). "Direct" service connection requires: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus (a causal link) between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge may still be service connected if the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Disorders diagnosed after discharge may still be service connected if the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303 (d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain "chronic" diseases may be service connected even if there is no evidence of the disease during service. See 38 C.F.R. §§ 3.309 (a), 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is considered a chronic disease. Id. Therefore, the provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303 (b) apply to that condition. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). This is referred to as "presumptive" service connection. While a chronic disease need not be diagnosed within one year of separation, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease during that time. Id. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (a). Any veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning January 9, 1962, and ending May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a) (6) (iii). The Veteran served in the Republic of Vietnam during the presumptive period and is presumed to have been exposed to herbicides. Early-onset peripheral neuropathy is one of the diseases presumptively linked with herbicide exposure. To qualify for presumptive service connection, early-onset peripheral neuropathy must manifest to a degree of 10 percent or more within one year after the last date the Veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307 (a)(6)(ii). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds persuasive or unpersuasive and explain its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about 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 v. Brown, 6 Vet. App. 465, 469 (1994). The Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of symptoms, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, the Board evaluates the entire record on appeal. 38 U.S.C. § 7104 (a). When the evidence fully supports the claim, it will be granted. When the evidence for and against the claim is approximately balanced, The Board resolves any reasonable doubt in the Veteran's favor and grant the claim. When the evidence is not approximately balanced, there is no reasonable doubt to resolve, and the claim will be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3rd 1391 (2021). 1. Right ankle disability The Veteran contends that he has a current right ankle disability that is related to ankle injuries during active service. November 2016 X-rays of the right ankle indicated "an old injury," osteoarthritis, and heel spurs. Although the Veteran has a current diagnosis of arthritis, service connection is denied because there is no competent evidence that this condition was caused by an injury, disease, or event during active duty. In a September 2016 statement, the Veteran alleged that he injured his right ankle during a "fire fight" when he came under "heavy enemy fire." He alleged that he was maneuvering to a better position to "lay down fire at the enemy" when his footing "gave way." The Veteran alleged that he immediately felt pain shoot up his right leg and he stopped to make sure he was not shot. He asserted that he continues to have residual pain from this injury, his right foot and ankle are "canted outward," and that he easily "wears out" shoes and boots. At the November 2021 Board hearing, the Veteran testified that he sustained a shrapnel wound to his right ankle the day he arrived in Vietnam. He testified that a another servicemember removed a nail-like object from his right ankle. The Veteran testified that he did not seek medical attention or report the injury at that time. He testified that he sprained his right ankle three days later while he was attempting to move heavy equipment. The Veteran alleged that his ankle was "twisted completely;" he reported to sick call, and was given crutches for approximately one week. He stated he was not placed on a physical profile but asserted that treatment for the ankle sprain was documented at the time. Given the Veteran's assertions of an in-service injury, the Board finds he did not serve in combat. His military occupational specialty ("MOS") was 76P20, a "stock control and accounting specialist." He was assigned to a general support warehouse operation during his entire tenure in Vietnam. The Veteran also did not receive any combat-related awards or decorations. He received the National Defense Service Medal (NDSM) and the Vietnam Service Medal (VSM). The former is awarded for honorable active service for any period between June 27, 1950 and July 27, 1954, or between January 1, 1961 and August 14, 1974. See Manual of Military Decorations and Awards, 6-1 (Department of Defense Manual 1348.33-M, July 1990). The VSM is given to all members of the Armed Forces of the United States serving at any time between July 4, 1965 and March 28, 1973 in Thailand, Laos, or Cambodia or the airspaces thereover in direct support of operations in Vietnam. Id. at 6-1. He also received the Republic of Vietnam Campaign Medal, which is awarded to those personnel who (1) served in the Republic of Vietnam for 6 months during a specified period; or, (2) served outside the geographical limits of the Republic of Vietnam but contributed direct combat support to the Republic of Vietnam and Armed Forces for 6 months; or, (3) served in the Republic of Vietnam or outside its geographical limits for less than 6 months but were wounded, captured or killed. See Army Regulation 672-5-1, 28. The "60 device" as to the latter decoration does not denote combat service. The Republic of Vietnam Campaign Medal with device bar (1960) was awarded to U.S. Armed Forces personnel by the Government of the Republic of Vietnam, regardless of position or occurrence. The medal was authorized for two separate periods, one of which was from January 1, 1960, with the ending date to be decided after the war was over. The ending date remains blank since the Republic of Vietnam Government ceased to exist before the ending date was established. The Veteran also did not receive a Purple Heart, or other awards indicative of combat participation. The Veteran's service treatment records (STRs) do not contain any reference to a right ankle injury, arthritis, or other ankle condition. In his July 1968 separation physical examination, the Veteran specifically denied then having, or ever having had swollen or painful joints, arthritis, foot trouble, or a bone or other joint deformity or skin abnormality. He denied receiving treatment for any medical condition within five years of the date of the examination (July 1968); and denied ever having had "any illness or injury" other than those otherwise recorded. Under the law, the Veteran's account of having been wounded is not presumed credible as it would be if he were a combat veteran. See 38 U.S.C.A. § 1154(b) and Collette v. Brown, 82 F.3d 389 (1996) (in substance providing that in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation). There is no otherwise substantiation for the Veteran's claimed in-service injury. At service separation, the Veteran's clinical feet and lower extremities evaluations were normal and he was assigned a "1" rating assessing his lower extremities under the PULHES profile system, indicating that the Veteran's lower extremities were then in a high level of fitness. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran's capacity and stamina ("P"); upper extremities ("U"); lower extremities ("L"); hearing ("H "); eyes ("E") and psychiatric condition ("S"); assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803 (4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran's account of his in-service ankle injuries is inconsistent with his service medical and personnel records, which do not reflect that the Veteran was engaged in a firefight and do not reference a shrapnel injury, sprain, or other right ankle injury. If the Veteran was prescribed crutches for an ankle sprain as he alleges, it is highly unlikely that this would not be documented in his service records. At service separation, the Veteran denied ever having had foot trouble, arthritis, or any other lower extremity problems. As noted above, the statements in the separation examination report are highly probative as to the Veteran's then-state of physical fitness. Rucker. Given this evidence, the Board finds that the Veteran's inconsistent statements concerning alleged in-service right ankle injuries are not credible and therefore not probative. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record); See also Gardin v. Shinseki, 613 F.3d 1374, 1379-80 (Fed. Cir. 2010) (approving the Board's analysis where it found the Veteran's lay statements not credible because they were contradicted by contemporaneous service medical records). The claim is denied. There is no probative, competent evidence indicating that the Veteran's current right ankle osteoarthritis was caused by (or in any way related to) service. The Veteran was diagnosed with arthritis in 2016, over 40 years after service separation. Although 2016 X-rays indicated an "old injury," as explained above, the Veteran's account of in-service ankle injuries is not credible or probative. Additionally, the Veteran does not contend, nor does the record establish that his right ankle osteoarthritis manifested to a compensable degree within one year of service separation. The Board considered the Veteran's assertion that his ankle disability causes him pain and that his right ankle/foot is bent, causing him to "wear out" shoes quickly. Although the Veteran is competent to report these symptoms, he does not have the medical training to link them with claimed in-service ankle injuries. 38 U.S.C. § 5107(a); Jandreau, above. The Veteran's lay assertions are not probative. The Veteran has not been afforded a VA examination for his right ankle disability. However, an examination is not warranted where, as here, the only evidence in favor of the claim is the Veteran's general, unsupported speculation and noncredible lay assertions. See 38 U.S.C. § 5103A (d) (2) (B); Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). The evidence for and against the claim is not approximately balanced and there is no reasonable doubt to resolve. Lynch. 2. Skin disability The Veteran contends that he has a skin disability that manifests with "rashes all over his body," and that this condition was caused by herbicide exposure during active service. The Veteran does not contend that his skin disability manifested during service. The Veteran's 1966 induction examination report noted that he had a cyst removed from his arm before active duty. However, the remaining STRs do not contain any reference to a rash or other skin abnormalities. In his 1968 separation physical, the Veteran's clinical skin evaluation was normal and he denied ever having had "skin trouble." Post-service VA medical records (from 2015 to the present) do not show treatment for a body rash. There is no record of the Veteran ever reporting a full body rash to his VA medical providers. In his September 2016 notice of disagreement (NOD), the Veteran reported that it was difficult to schedule a medical appointment during outbreaks of his skin rash. In an April 2017 dermatology note, the Veteran reported he was concerned about a skin lesion on his right temple which had been present for ten years. He denied any prior history of skin conditions or treatment for skin conditions. The attending VA clinician diagnosed the Veteran with seborrheic keratosis and advised that the condition was common, benign, not cancerous, not related to sun exposure, and was related to age. A May 2018 VA record noted the Veteran had a non-tender dark raised lesion in the center of his upper chest. The Veteran described the lesion as a "mole," and reported it had been growing for several years. He denied pain at the site of the lesion. The attending clinician noted the Veteran's skin was otherwise normal. In September 2020, the Veteran reported a mole near his left eye was painful and growing. The attending clinician noted seborrheic keratosis (a "skin tag") on the Veteran's right temple and advised surgical removal. The clinician also noted the Veteran bruised easily due to senile purpura. The Veteran's right temple skin tag was surgically removed in November 2020 without complications. At the November 2021 Board hearing, the Veteran testified that the developed rashes "mostly on [his] stomach" approximately one year after separation from active duty. He testified that he used over-the-counter creams to treat the rash but never saw a doctor for the condition. However, the Veteran testified that a VA doctor told him his rash could have been caused by Agent Orange. He did not recall the name of the doctor. The Veteran was afforded 60 days to obtain an opinion to that effect from his treating doctor but did not do so. His VA medical records do not contain any opinion from his medical providers linking any of his skin conditions with herbicide exposure. The Veteran has not been afforded a VA examination for his claimed skin disability. However, an examination is not warranted where, as here, the only evidence in favor of the claim is the Veteran's general, unsupported speculation. See 38 U.S.C. § 5103A (d) (2) (B); Waters, above. Additionally, there is no evidence that the Veteran's claimed skin rash causes him pain or any functional impairment. See Saunders v. Wilke, 886 F. 3d 1356 (Fed. Cir. 2018) (holding that service connection may be warranted without a diagnosis if there is evidence of pain causing functional impairment). The claim is denied because the Veteran does not have a current diagnosis of any rash or other skin disability related to service, including presumed herbicide exposure. See 38 C.F.R. § 3.303, Brammer (service connection requires a current disability). The evidence for and against the claim is not approximately balanced and there is no reasonable doubt to resolve. Lynch. 3. Bilateral lower extremity peripheral neuropathy The Veteran contends that he has bilateral lower extremity peripheral neuropathy due to herbicide exposure during active duty. The Veteran's STRs do not contain any reference to peripheral neuropathy or related neurological symptoms. In his 1968 separation physical, the Veteran's clinical neurological, lower extremities, and foot evaluations were normal. He denied ever having had swollen or painful joints, foot trouble, and neuritis. In a September 2015 VA medical record, the Veteran reported numbness in the top of his feet during mornings. He reported that these symptoms resolved after fifteen minutes. The attending clinician noted the Veteran did not have diabetes and did not have trouble moving his legs. Physical examination revealed normal muscle strength, sensation, and a normal gait. In his September 2016 NOD, the Veteran asserted that he had numbness, tingling, and burning in his feet. He reported that these symptoms caused difficulty walking, standing, and affected his ability to perform activities of daily living (ADLs). He reported that exercise was "out of the question." However, an October 2016 VA record noted the Veteran was highly independent based on his answers to two questionnaires designed to evaluate ability to perform ADLs. He continued to report numbness on the top of his feet although he did not report that these symptoms interfered with ADLs. An October 2017 VA record noted the Veteran walked with a normal gait and did not have sensory or range of motion (ROM) deficits in his lower extremities. In June 2021, a VA clinician noted the Veteran had an antalgic gait because of swelling and crepitus in his left knee. The clinician noted the Veteran did not have any neurological deficits in his lower extremities and his skin appeared normal. At the November 2021 Board hearing, the Veteran testified that he developed numbness and tingling in his lower extremities after service. He did not state when he developed these symptoms. The Veteran asserted that his left knee "causes the numbness." He testified that no doctor had indicated his neurological symptoms were linked with herbicide exposure. The Veteran was afforded 60 days from the date of the hearing to submit a medical opinion from his doctor linking his neurological symptoms with herbicide exposure but did not do so. The undersigned also advised the Veteran that he would have to file a separate application for any left knee disability. The Veteran has not submitted any competent evidence showing a current diagnosis of bilateral lower extremity peripheral neuropathy. Without proof of a current disability, there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225. The Veteran is competent to observe symptoms of numbness and tingling in his lower extremities, he does not have the medical training to diagnose himself with peripheral neuropathy or give an opinion that the condition was caused by herbicide exposure. 38 U.S.C. § 5107(a). The issue is medically complex, requiring specialized medical knowledge and the ability to interpret diagnostic medical testing. Jandreau, above. The Board has also considered the Veteran's lay statements that he has difficulty standing, walking, and performing ADLs due to neurological symptoms. See Saunders, above. He is competent to report these functional impairments, however he does not have the medical training to opine that these impairments were caused by peripheral neuropathy. His lay assertions are substantially outweighed by the VA medical records, which show that his altered gait and difficulty ambulating are related to his non-service-connected bilateral knee arthritis. The Veteran has not been afforded a VA examination for his claimed peripheral neuropathy condition. However, an examination is not warranted where, as here, the only evidence in favor of the claim is the Veteran's general, unsupported speculation. See 38 U.S.C. § 5103A (d) (2) (B); Waters, above. The claim is denied because the Veteran does not have a current diagnosis of bilateral lower extremity peripheral neuropathy. See 38 C.F.R. § 3.303, Brammer (service connection requires a current disability). The evidence for and against the claim is not approximately balanced and there is no reasonable doubt to resolve. Lynch. REASONS FOR REMAND 4. The issue of entitlement to an initial compensable rating for bilateral hearing loss since November 2, 2015 is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: The Veteran contends his bilateral hearing loss has worsened and his last audiological examination was in 2016. The claim is remanded for an updated examination. 2. REMAND DIRECTIVES: Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected bilateral hearing loss. All necessary audiological tests must be completed, including speech recognition testing using the Maryland CNC word list. The examiner must consider the Veteran's reports of worsening hearing loss symptoms. Although the examiner must review the entire claim file, his/her attention is drawn to the following: In September 2016, the Veteran reported it was "very challenging" to hear normal conversations and that he must ask people to repeat themselves especially if there is ambient noise (like in a restaurant). He also reported he turns his television and phone to maximum volume to hear. At the November 2021 Board hearing, the Veteran reported his hearing was worsening. He reported he frequently does not understand speech and asks people to repeat words. He reported that he tried using hearing aids but they bothered him because he "heard too much noise." 3. The RO will then readjudicate the claim for a compensable initial rating for bilateral hearing loss. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.