Citation Nr: 22016301 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 15-10 490A DATE: March 21, 2022 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for a right foot disability is denied. Entitlement to service connection for a left foot disability is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a right arm disability is remanded. Entitlement to service connection for left arm disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for right leg disability is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for Hepatitis C is remanded. FINDINGS OF FACT 1. The evidence of record does not establish that the Veteran has a current hearing loss disability for VA purposes. 2. The probative evidence weighs against a finding of a nexus between the Veteran's current right foot disability and his period of service, to include carrying heavy equipment, exposure to cold and wet conditions, riding in an armored personnel carrier, and small footwear. 3. The probative evidence weighs against a finding of a nexus between the Veteran's current left foot disability and his period of service, to include carrying heavy equipment, exposure to cold and wet conditions, riding in an armored personnel carrier, and small footwear. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for a right foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from March 1976 to August 1977. In June 2018 and October 2020, the Board remanded the appeal for further development. Service Connection 1. Service connection for bilateral hearing loss The Veteran contends that his claimed bilateral hearing loss disability is due to his period of service. The Board finds that the probative medical evidence of record indicates that the Veteran does not have a hearing loss disability for VA purposes, and therefore, service connection is not warranted. Service connection is warranted where the evidence of record establishes that an 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. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). For 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; when the auditory thresholds for at least three of the above 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. Turning to the first element of service connection, a current hearing loss disability must be established. In an April 2010 VA audio examination, the audiologist reported the following puretone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 15 20 LEFT 20 15 20 20 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 96 in the left ear. In a December 2020 VA audio examination, the audiologist reported the following puretone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 15 15 LEFT 20 25 20 25 25 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 in the left ear. The Board notes that the examiner the December 2020 examination reported sensorineural hearing loss at the 6000 Hertz threshold frequency for the left ear; however, for the purposes of determining whether the Veteran has a current hearing loss disability for VA purposes, this threshold is not considered. See 38 C.F.R. § 3.385. After review of the record, the Board finds that the probative evidence of record does not establish that the Veteran has impaired hearing of either ear for VA purposes. The regulations set a clear standard for hearing disability for VA purposes. There is no evidence of record showing that, at any point, the claimed hearing loss rose to the level that they show speech recognition of less than 94 percent, an auditory threshold at the frequencies 500, 1000, 2000, 3000, 4000 Hertz at 40 decibels or more, or at least three auditory thresholds at the frequencies of 26 decibels or more. The Board has also considered the Veteran's contention that his period of service resulted in his bilateral hearing loss. However, audiometric testing results of record do not establish that the Veteran has a bilateral hearing loss disability pursuant to 38 C.F.R. § 3.385. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. The competent evidence establishes that the Veteran does not have the disability for which service connection is sought, and there can be no valid claim. 2. Service connection for a right foot disability 3. Service connection for a left foot disability The Veteran contends that his left and right foot conditions are due to his period of service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that evidence does not establish that the Veteran's right and left foot disabilities are due to his period of service. In a June 2021 VA examination, the examiner reported foot diagnoses of bilateral pes planus, plantar fasciitis, and hallux valgus. The examiner also noted that the Veteran's medical records include an August 2008 report of bilateral foot pain for more than ten years, diagnosed as plantar fibromatosis. A September 2008 podiatry consult notes impression of plantar fasciitis. The record also indicates multiple VA records with the Veteran presenting with diffuse musculoskeletal complaints. The Veteran's service treatment records indicate that the Veteran reported for boot size evaluation in April 1976 and again in May 1976. The Veteran also reported to sick call for foot pain in July 1976. In a November 2008 lay statement accompanying the Authorization for Release of Information, the Veteran reported that the physical demands of his active-duty service as an infantryman, to include carrying heavy equipment, riding in an armored personnel carrier, exposure to wet and cold conditions and too small footwear, resulted in chronic arthritis, to include right and left foot conditions. The Veteran's description of his duties is consistent with his period of service. In a June 2021 VA examination, the examiner opined that it was less likely than not that the Veteran's right and left foot disabilities were due to his period of service. The examiner noted that the Veteran reported for foot pain in 1976, and he had his boot size evaluated twice in 1976. The examiner further noted that the Veteran's separation examination in 1977 was normal. The examiner stated that the Veteran's records show complaint of diffuse musculoskeletal pains starting around 2000. The examiner noted that there are no records supporting persistent foot pain since service. Moreover, the examiner stated that to his knowledge, there is no medical literature connecting the Veteran's pes planus, plantar fasciitis, and hallux valgus to too small footwear. For these reasons, the examiner concluded that it was less likely than not that the Veteran's right and left foot disabilities were due to his period of service, to include as due to heavy equipment, injury in an armored personnel carrier, cold and wet conditions, and too small footwear. After review of the record, the Board finds that the probative evidence weighs against a finding of service connection for right and left foot conditions. The June 2021 VA medical opinion found no nexus between the Veteran's current foot conditions and his period of service. The opinion was based on the Veteran's lay statements regarding his service, his medical history, and the available medical literature. Therefore, the Board finds the opinion probative for the purpose of adjudication. As such, service connection for right and left foot disabilities is not warranted. While the Veteran believes that his right and left foot disabilities are related to his period of service, he is only competent to report symptoms and is not competent to opine on the etiology of right and left foot disabilities, as this is a medically complex question. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the Veteran can competently report observed symptoms, any opinion regarding whether his condition was related to his period of service requires medical expertise that the Veteran has not demonstrated. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376 (2007). Therefore, the Veteran's statements regarding etiology hold no probative value. As the probative medical evidence does not establish a nexus, the criteria for service connection have not been met. REASONS FOR REMAND 1. Service connection for a cervical spine disability is remanded. 2. Service connection for a lumbar spine disability is remanded. The Veteran contends that his cervical spine disability and lumbar spine disability are due to his period of service. In an October 2020 Board remand, the Board directed that the Veteran be afforded an examination. The Board directed that the examiner determine whether it is at least as likely as not that the Veteran's cervical spine and lumbar spine disabilities are related to the Veteran's active duty service, to include carrying heavy equipment, riding in an APC, or exposure to cold and wet conditions. The examiner was also directed to determine whether it is at least as likely as not that the Veteran's spine disabilities are related to the reported incident in which the Veteran was struck on the head, neck, and back by an APC door. In a September 2021 VA examination, the examiner gave a medical opinion regarding the Veteran's cervical spine and lumbar spine disability in relation to the reported incident in which the Veteran was struck on the head, neck, and back by an APC door; however, the examiner did not opine as to whether the Veteran's cervical spine and lumbar spine disability are related to carrying heavy equipment, riding in an APC, or exposure to cold and wet conditions. Moreover, while the examiner gave the records used to make the conclusions reached, the examiner did not provide explanation as to why the records led to the conclusions reached. Therefore, a remand for an addendum opinion is necessary. 3. Service connection for a right arm disability is remanded. 4. Service connection for a left arm disability is remanded. 5. Service connection for a right hip disability is remanded. 6. Service connection for a left hip disability is remanded. 7. Service connection for a right knee disability is remanded. 8. Service connection for a left knee disability is remanded. 9. Service connection for right leg disability is remanded. 10. Service connection for a left leg disability is remanded. The Veteran contends that his right arm disability, left arm disability, right hip disability, left hip disability, right knee disability, left knee disability, right leg disability, and left leg disability are due to his period of service. In an October 2020 Board remand, the Board directed that the Veteran be afforded an examination for a medical opinion regarding these conditions. Specifically, the examiner was asked to determine whether it was at least as likely as not that the Veteran's conditions were due to his period of service, to include exposure to cold and wet conditions, carrying heavy equipment, and injury in an armored personnel carrier. In a June 2021 VA examination, the examiner opined that it was less likely than not that the Veteran's disabilities were due to his period of service. While the examiner gave the records used to make the conclusions reached, the examiner did not provide explanation as to why the records led to the conclusions reached. The opinions also lack consideration of the Veteran's lay statements regarding his in-service incurrence. Therefore, a remand is warranted for addendum opinions to determine whether the Veteran's claimed disabilities are related to the Veteran's period of service, to include as due to exposure to cold and wet conditions, injury in an armored personnel carrier, or requirement to carry heavy equipment. 11. Service connection for Hepatitis C is remanded. The Veteran contends that his Hepatitis C is due to his period of service. In an October 2020 Board remand, the Board directed that an examiner determine whether it is at least as likely as not that the Hepatitis C is related to the Veteran's active duty service, to include vaccinations, tattoos or fights. The examiner was also asked to determine whether it is at least as likely as not proximately caused by substance abuse which is caused or aggravated by a service-connected disability, to include a non-specified trauma and stressor related disorder. In a June 2021 VA medical opinion, the examiner opined that it is less likely than not that the Veteran's Hepatitis C is due to his period of service. In the rationale, the opinion stated on one hand, that the Veteran's more likely risk factors included tattoos when determining that the Veteran's vaccinations during service were less likely to cause Hepatitis C; however, the examiner also concluded that the Veteran's Hepatitis C was less likely than not due to the Veteran's tattoos during service, noting the other previously mentioned risk factors that the Veteran has. Moreover, the examiner was asked to determine if the Veteran's substance abuse was at least as likely as not to cause the Veteran's Hepatitis C, and if so, whether the substance abuse was the result of or aggravated by, the Veteran's service-connected acquired psychiatric disorder. The opinion incorrectly characterized the question, concluding that the Veteran's Hepatitis C was not the result of or aggravated by the Veteran's service-connected acquired psychiatric disorder. For these reasons, a remand is necessary for an addendum opinion. The matters are REMANDED for the following action: 1. Send the Veteran's file to an appropriate examiner(s) to determine the nature and etiology of the Veteran's claimed cervical spine disability, lumbar spine disability, right arm disability, left arm disability, right hip disability, left hip disability, right knee disability, left knee disability, right leg disability, left leg disability and Hepatitis C. Schedule an examination only if the examiner deems it necessary. The claims file, to include this remand, should be made available and reviewed by the examiner. After review of the record, the examiner(s) is asked to offer an opinion on the following: a. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's cervical spine disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the Veteran's lay statements, to include assertion that the disability was due to exposure to cold and wet conditions, injury in an armored personnel carrier, riding in an armored personnel carrier, or requirement to carry heavy equipment. b. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar spine disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the Veteran's lay statements, to include assertion that the disability was due to exposure to cold and wet conditions, injury in an armored personnel carrier, riding in an armored personnel carrier, or requirement to carry heavy equipment. c. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right arm disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the Veteran's lay statements, to include assertion that the disability was due to exposure to cold and wet conditions, riding in an armored personnel carrier, or requirement to carry heavy equipment. d. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left arm disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the Veteran's lay statements, to include assertion that the disability was due to exposure to cold and wet conditions, riding in an armored personnel carrier, or requirement to carry heavy equipment. e. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right hip disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the Veteran's lay statements, to include assertion that the disability was due to exposure to cold and wet conditions, riding in an armored personnel carrier, or requirement to carry heavy equipment. f. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left hip disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the Veteran's lay statements, to include assertion that the disability was due to exposure to cold and wet conditions, riding in an armored personnel carrier, or requirement to carry heavy equipment. g. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right knee disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the Veteran's lay statements, to include assertion that the disability was due to exposure to cold and wet conditions, riding in an armored personnel carrier, or requirement to carry heavy equipment. h. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the Veteran's lay statements, to include assertion that the disability was due to exposure to cold and wet conditions, riding in an armored personnel carrier, or requirement to carry heavy equipment. i. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's right leg disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the Veteran's lay statements, to include assertion that the disability was due to exposure to cold and wet conditions, riding in an armored personnel carrier, or requirement to carry heavy equipment. j. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left leg disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the Veteran's lay statements, to include assertion that the disability was due to exposure to cold and wet conditions, riding in an armored personnel carrier, or requirement to carry heavy equipment. k. Determine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's Hepatitis C disability is manifested in, caused by, or is otherwise etiologically related to his active duty service. In making this determination, the examiner must consider and discuss the assertions that the disability was due to vaccination, tattoos during service, fighting during service, or substance abuse. If the examiner determines that the Veteran's Hepatitis C is at least as likely as not related to the Veteran's substance abuse, the examiner is asked to determine whether the Veteran's substance abuse was the result of or aggravated by, the Veteran's service-connected acquired psychiatric disorder. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.