Citation Nr: 1754226
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 11-07 948 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia

THE ISSUES

1. Entitlement to service connection for a left knee disability.

2. Entitlement to service connection for bilateral hearing loss.

3. Entitlement to service connection for diabetes mellitus, type 2.

4. Entitlement to service connection for a bilateral foot condition, to include neuropathy caused by diabetes mellitus, type 2, or as due to a left knee disability.

5. Entitlement to service connection for a respiratory condition, claimed as due to asbestos exposure.

REPRESENTATION

Veteran represented by: Veterans of Foreign Wars of the United States

WITNESSES AT HEARING ON APPEAL

The Veteran and B.G.

ATTORNEY FOR THE BOARD

R. Connally, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, had service from August 1955 to August 1959.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2010 decision issued by the Regional Office (RO) in Huntington, West Virginia.

In October 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. Additional evidence was received after the hearing and was accompanied by a waiver of RO consideration. See 38 C.F.R. § 20.1304(c) (2017).

The Board previously considered this appeal in February 2017, and remanded these issues for additional development in order to request VA examinations and outstanding treatment records. After the development was completed, the case returned to the Board for further appellate review.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The issue of service connection for a respiratory disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. The Veteran has a current diagnosis for left knee replacement, secondary to degenerative arthritis.

2. Symptoms of the current left knee disability were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service.

3. The current left knee disability is not related to service.

4. The Veteran has a current diagnosis of bilateral hearing loss.

5. The Veteran was exposed to acoustic trauma during active service.

6. Symptoms of the currently diagnosed bilateral hearing loss were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service.

7. The current bilateral hearing loss disability is not related to service.

8. The Veteran has a current diagnosis of diabetes mellitus, type 2.

9. The Veteran did not experience symptoms of diabetes while in service.

10. Symptoms of the currently diagnosed diabetes were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service.

11. The Veteran’s diabetes diagnosis is not related to service.

12. The Veteran has a current diagnosis of bilateral foot neuropathy.

13. The Veteran was not treated or diagnosed with bilateral foot neuropathy during service.

14. Symptoms of the current bilateral foot neuropathy were not chronic in service, were not continuous since service, and were not shown to a compensable degree within one year of service.

15. The Veteran’s bilateral foot neuropathy is not related to service.

CONCLUSIONS OF LAW

1. The criteria to establish service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

2. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2017).

3. The criteria to establish service connection for diabetes have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).

4. The criteria to establish service connection for a bilateral foot condition have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). The Court has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, “It is clear that 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.

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, hearing loss, and diabetes to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumptive period, it must be shown-by acceptable lay or medical evidence-that there were characteristic manifestations of the disease to the required degree during that time.

Arthritis, hearing loss, and diabetes are “chronic diseases” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) based on “chronic” symptoms in service and “continuous” symptoms since service are applicable to the service connection claims for a left knee disability, bilateral hearing loss, and diabetes. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. For the showing of 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).

A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to a service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998); Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated on a secondary basis for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Service Connection for a Left Knee Disability

The Veteran contends that he developed a left knee disability as a result of service. He testified before the undersigned in October 2016, and explained that he did not remember any particular traumatic event that could have caused his current left knee disability. He mentioned that he jumped around on the ship and even jumped off the boat at some point. The Veteran also said that prior to his left knee replacement surgery in the 1990s that the doctor may have attributed the cause to “excessive wear or what, whatever, you know, the jumping around.” He said that he understood the doctor’s comments to mean that his left knee had deteriorated beyond the normal range for a person of his size and age. The Veteran also stated that he did not report any knee problems in service in order to avoid problems with his leadership chain. Lastly, he said that he believes the bilateral foot problems were caused by the left knee disability.

First, the evidence of record demonstrates that the Veteran has a current diagnosis for left knee replacement, secondary to degenerative arthritis. See March 2017 VA examination.

Service treatment records show no abnormalities for the left knee upon entrance or separation from service. In the Veteran’s October 2016 Board hearing testimony he also affirmatively denied seeking any treatment during service for a left knee condition. As discussed above, however, the Veteran described jumping around the ship.

However, an in-service injury alone does not mandate that service connection be granted. The in-service injury must be shown to cause his current left knee disability, or to have caused chronic or continuous symptoms of the current disability to a degree of 10 percent or more within one year of service to be presumed as incurred in-service.

As the Veteran’s current left knee disability is a chronic disease under 38 C.F.R. § 3.309(a), the Board will consider whether chronic symptoms in service or continuity of symptomatology since service have been shown.

In this case, the Board finds the weight of the evidence demonstrates that the Veteran did not experience chronic symptoms of a left knee disability in service or continuous symptoms of a left knee disability since service to warrant presumptive service connection under 38 C.F.R. § 3.303(b).

First, the Board finds that the Veteran did not experience chronic symptoms of a left knee disability during service. Service treatment records do not show that the Veteran was treated for any incidents involving the left knee. Additionally, 38 C.F.R. § 3.303(b) explains that presumptive service connection does not mean any manifestation of joint pain in service will permit service connection of arthritis as there is a required combination of manifestations 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, the Veteran’s current statements, made in connection with his claim for benefits, are inconsistent with statements made during service. The Veteran’s in-service history of symptoms at the time of service separation is contemporaneous to service, and so it is of more probative value than the recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). As such, the Board finds that the Veteran did not experience chronic symptoms of a left knee or low back disability during service. 38 C.F.R. § 3.303(b).

Next, the Board finds the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a left knee disability after service separation. As explained in 38 C.F.R. § 3.303(b), continuity of symptoms is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id.

In this case, the Veteran’s statements are competent to report symptoms of pain because this requires only personal knowledge as it comes through the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Nonetheless, the Board finds the reported histories of continued left knee problems since service are inconsistent with, and outweighed by, the other lay and medical evidence of record.

Even accepting these assertions as true, they do not support a finding that the Veteran experienced continuous symptoms of a left knee disability since service. The separation examination in July 1959 described the lower extremities as normal. Moreover, the evidence of record does not contain any subsequent treatment for this condition within one year of service and there is an approximately 33-year period of time between service separation and initial treatment for the left knee in January 1992. This multi-year gap between service and treatment is one factor, among others, weighing against a finding of continual symptoms since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as one factor in resolving a claim).

The evidence of record shows that the Veteran did not assert he had a left knee disability related to service until he filed his claim for benefits in December 2009. Additionally, the Veteran did not claim that symptoms of his left knee began in (or soon after) service until he filed his current VA disability compensation claim. In the Veteran’s original December 2009 claim for “knee replacement,” he stated that this disability did not begin until 1996 (the Veteran had his left knee arthroplasty in November 1996). The Board has weighed the Veteran’s statements as to continuity of symptomatology and finds his current recollections and statements made in connection with the claim for benefits to be of lesser probative value. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran’s statements, it may consider whether self-interest may be a factor in making such statements); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). For these reasons, the Board finds that the weight of the evidence is against a finding of continuity of symptomatology after service. 38 C.F.R. § 3.303(b).

Furthermore, the March 2017 VA examiner’s opinion (as discussed below) is more probative than the Veteran’s statements because a layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever).

Moreover, arthritis is diagnosed primarily on clinical findings such as X-rays or specialized testing, such as MRI, which the Veteran is not competent to conduct or interpret. See 38 C.F.R. § 4.71a, Diagnostic Code 5003 (degenerative arthritis established by X-ray findings), Diagnostic Code 5010 (traumatic arthritis established by X-ray findings), Diagnostic Code 5002 (rheumatoid arthritis must be “objectively confirmed by findings” that show limitation of motion). Cf. 38 C.F.R. § 4.66 (indicating the usual way to diagnose arthritis is by X-ray, which is also required to see arthritic changes).

There are no clinical findings of a left knee disability until at least 1992. Additionally, the record does not indicate that the Veteran received treatment for arthritis of the left knee during service or that he actually received treatment for any left knee disability within the first year following service separation. Therefore, a left knee disability was not shown within the first year of discharge and the presumptions under 38 U.S.C. § 1112 and 38 C.F.R. § 3.309 do not apply. As such, the criteria for presumptive service connection have not been met.

Nonetheless, as a left knee disability is currently shown and the evidence reflects a possible in-service injury, the next question is whether there is a causal relationship between the current complaints and the in-service injury. After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence is against a finding of a nexus between the Veteran’s current left knee disability and service.

Private treatment records from September 1997 indicate that the Veteran had received treatment for a left total knee arthroplasty. The treating physician noted that the Veteran’s left knee condition started out as treatment for post-traumatic degenerative arthritis since January 1992. The September 1997 treatment records also show that the Veteran had reported a prior left knee injury from December 1991. The treating physician reported the Veteran’s endorsement that he was involved in a motor vehicle accident in December 1991 and bumped his left knee on the window crank of his tractor-trailer truck. The Veteran said that after the initial incident he came down from the rig, but missed the step, twisted his left knee, and fell. The Veteran also told the treating physician that he continued to work after the incident, but had increasing pain and swelling, which led him to seek further treatment. The Veteran explained that he had arthroscopic surgery on his left knee and eventually returned to work, but noted progressively increased left knee pain and recurrent swelling. The treating physician noted that two years later the Veteran sought treatment again for left knee pain. He then underwent a tibial osteotomy due to post-traumatic degenerative arthritis in the medial joint compartment of his left knee.

The September 1997 treating physician reported that the Veteran had a total knee arthroplasty in November 1996, but continued to have left knee pain despite six months of physical therapy and use of pain medication. The same treating physician also noted that x-rays from October 1993 showed significant degenerative joint disease, particularly in the medial joint compartment, but also in the patellofemoral joint compartment. The final diagnosis in September 1997 was post-traumatic degenerative arthritis left knee, status post tibial osteotomy, status post total knee arthroplasty as a result of the motor vehicle injury December 1991.

On VA examination in March 2017, the examiner opined that the claimed left knee disability was less likely than not incurred in or caused by a specific in-service injury, event, or illness. The examiner explained that the Veteran’s separation examination indicated normal lower extremities and that there was no service treatment records showing that the Veteran was treated or diagnosed with a left knee condition. She further reported that it was less likely than not that the Veteran’s jumping and moving around on the ship led to knee problems after service. The examiner explained that if the Veteran had a knee condition caused by frequent jumping around while in service, then it is logical to assume that he would have sought medical treatment prior to the 1990s. She added that osteoporosis can develop from a traumatic injury, but the Veteran has no documentation of such an event. The Board finds this medical opinion highly probative of a negative nexus between the Veteran’s current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

In this decision, the Board has considered the Veteran’s contentions as they pertain to a nexus between current complaints and service. Lay statements may be competent 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan, 451 F.3d at 1331 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Furthermore, the Board is reminded that the Veteran testified before the undersigned in October 2016, and explained that he did not remember any particular traumatic event during service that could have caused his current left knee disability. Yet, private treatment records from September 1997 show that the Veteran’s motor vehicle accident in December 1991 led to a diagnosis of post-traumatic degenerative arthritis and eventually to a total left knee arthroplasty. In addition, as the VA examiner pointed out, the evidence does not show that the Veteran sought treatment for a left knee condition prior to January 1992.

Some medical disorders require specialized training for a determination as to diagnosis and causation; therefore, such issues are not susceptible of lay opinions on etiology, and a veteran’s lay statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (stating that it “is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”).

As a layperson, the Veteran has not been shown to have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorders identified as a current diagnosis of the left knee. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service).

Arthritis is a medically complex disease process because of its multiple etiologies, requires specialized testing to diagnose properly and sometimes involves symptomatology that overlaps with other disorders. Woehlaert, 21 Vet. App. at 462 (holding that rheumatic fever is not a condition capable of lay diagnosis). The etiology of the Veteran’s current left knee disability is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran.

Additionally, the symptoms of pain can overlap with other disorders. To differentiate pain attributable to the left knee arthritis from pain due to other spine disorders or etiologies requires knowledge of multiple other disorders that also cause symptoms of pain and peripheral nerve issues, as well as knowledge of all possible etiologies of arthritis, not just injury to a joint. Here, the Veteran has not shown to have such knowledge, training, or experience to differentiate such symptoms or as to all possible etiologies of arthritis. Based on the above, the Board does not find the Veteran competent to provide evidence of an etiological nexus between his current left knee disability and service. As such, there is no competent evidence of record suggesting a causal relationship between the Veteran’s disability and service; therefore, the Board attaches greater probative weight to the March 2017 VA examination opinion than to the lay statements of record.

The Board finds that the March 2017 VA examination opinion is adequate and highly probative for nexus purposes. Specifically, during the March 2017 VA examination, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran’s past medical history and in-service as well as post-service left knee complaints or that the Veteran misstated any relevant fact. Moreover, the examiner has the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base her conclusions. As such, the Board accords the March 2017 VA examination opinion great probative weight.

For the reasons discussed above, the weight of the evidence demonstrates that the Veteran’s current left knee disability was not incurred in service or presumed to have been incurred therein. Therefore, the claim for service connection for a left knee disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

As discussed in detail above, service connection for left knee disability has been denied; therefore, it cannot serve as the basis of a grant of service connection for a bilateral foot disability. See 38 C.F.R. § 3.310(a). As the Veteran has no service-connected left knee disability that caused or aggravated the bilateral foot disability, the benefit of the doubt doctrine does not apply, and service connection on a secondary basis must be denied as a matter of law. See id.; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Service Connection for Bilateral Hearing Loss

The Veteran contends that he developed bilateral hearing loss as a result of service. Specifically, the Veteran states that he experienced acoustic trauma during service due to noise exposure caused by anti-aircraft guns.

First, the evidence of record demonstrates that the Veteran has a current bilateral hearing loss disability for VA purposes. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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.

On VA examination in March 2017, the Veteran was diagnosed with sensorineural hearing loss in both ears. Pure tone thresholds, in decibels, were as follows:

HERTZ

500
1000
2000
3000
4000
RIGHT
65
75
80
85
85
LEFT
60
65
70
75
80

Speech audiometry revealed speech recognition ability of 56 percent in the right ear and of 44 percent in the left ear.

Next, the Board finds that the Veteran experienced in-service acoustic trauma. The Veteran’s Form DD 214 lists his specialty as “AEM 7110” and his personnel file reflects his military occupational specialty was AE. He also testified before the undersigned in October 2016 that he served as a boatswain mate and a “first loader” on a set of “quad 40s,” an anti-aircraft gun. He said that he stood within three feet of the gun’s barrel when it would discharge. He also stated that his hearing loss has continued to progress since he was discharged from service. The Veteran is competent to report noise exposure in service. See Bennett v. Brown, 10 Vet. App. 178 (1997) (the Board may rely upon lay testimony as to observable facts). Thus, harmful noise exposure is consistent with the circumstances of his service.

The Veteran only had a whisper test during his August 1955 entrance examination that showed 15/15 for both ears. The Veteran had an in-service audiological evaluation during his service separation examination in July 1959, at which time auditory thresholds were recorded using American Standards Association (ASA) units.

In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels, respectively, to the recorded data as follows:

Hertz
250
500
1000
2000
3000
4000
6000
8000
add
15
15
10
10
10
5
10
10

On the separation audiological evaluation in July 1959, pure tone thresholds, in decibels, were recorded using ASA standards as follows (converted ISO units are displayed in parenthesis):

HERTZ

500
1000
2000
3000
4000
RIGHT
+5 (20)
0 (10)
-5 (5)
-5 (5)
-5 (0)
LEFT
+5 (20)
0 (10)
0 (10)
0 (10)
+10 (15)

The medical evidence of record does not demonstrate that the Veteran sustained any in-service hearing loss. The Veteran’s service treatment records show that he did not have any documented complaints, treatment, or diagnosis for hearing loss. His hearing examination at separation was essentially “normal.” Service treatment records do not reflect any complaint, treatment, or diagnosis of a hearing loss disability, or otherwise reflect a reported history or findings of an auditory injury. Although the Veteran was not specifically diagnosed with a hearing loss disability of either ear in active service, such is not required. See 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence); Hensley, 5 Vet. App. at 159 (holding that service connection is not precluded for hearing loss that first met VA’s definition of disability at 38 C.F.R. § 3.385 after service). The evidence of record demonstrates acoustic trauma during service and the Veteran subsequently reported noticing that his hearing diminished right after he separated from service and continued to worsen since service separation. See e.g., March 2017 VA examination.

An in-service injury alone does not mandate that service connection be granted. The in-service acoustic trauma must be shown to cause his current bilateral hearing loss disability, or to have caused chronic or continuous symptoms of the current bilateral hearing loss disability to a degree of 10 percent or more within one year of service to be presumed as incurred in-service.

As the Veteran’s current bilateral hearing loss disability is a chronic disease under 38 C.F.R. § 3.309(a), the Board will consider whether chronic symptoms in service or continuity of symptomatology since service have been shown.

In this case, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience chronic symptoms of a bilateral hearing loss disability in service or continuous symptoms of a bilateral hearing loss disability since service to warrant presumptive service connection under 38 C.F.R. § 3.303(b).

First, the Board finds that the Veteran did not experience chronic symptoms of a bilateral hearing loss disability during service. Service treatment records show that the Veteran was not treated for hearing loss related symptoms and his separation examination did not reveal any objective hearing loss. As a result, the Board does not find the Veteran’s more recent reports of in-service injuries and symptoms to be credible to the extent that it is related to any current bilateral hearing loss. To the extent the Veteran claimed that his bilateral hearing loss disability occurred during service, the current statements, made in connection with his claim for benefits, are inconsistent with statements made during service. The Veteran’s in-service history of symptoms at the time of service separation is contemporaneous to service, and so it is of more probative value than the recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). As such, the Board finds that the Veteran did not experience chronic symptoms of a bilateral hearing loss disability during service. 38 C.F.R. § 3.303(b).

Next, the Board finds the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a bilateral hearing loss disability after service separation. As explained in 38 C.F.R. § 3.303(b), continuity of symptoms is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id.

The evidence of record shows the Veteran did not claim that symptoms of bilateral hearing loss began in (or soon after) service until he filed his claim in December 2009. The Board has weighed the Veteran’s statements as to the extent he asserted continuity of symptomatology since the time he filed his claim and finds his current recollections and statements made in connection with a claim for benefits to be of lesser probative value. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran’s statements, it may consider whether self-interest may be a factor in making such statements); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). For these reasons, the Board finds that the weight of the evidence is against a finding of continuity of symptomatology after service. 38 C.F.R. § 3.303(b).

Moreover, bilateral hearing loss is diagnosed primarily on clinical findings such as specialized audiological testing, which the Veteran is not competent to conduct or interpret. See 38 C.F.R. § 3.385.

There are no clinical findings of a bilateral hearing loss disability until approximately 58 years after the Veteran separated from service. Additionally, the record does not indicate that the Veteran received treatment for bilateral hearing loss during service or that he actually received treatment for any bilateral hearing loss disability within the first year following service separation. Although the Veteran has asserted that his current bilateral hearing loss was caused by noise exposure during service, he does not have the requisite specialized expertise in audiology to measure or diagnose a hearing loss disability, which is determined based on objective audiometric testing and controlled speech recognition testing. A hearing loss disability is diagnosed primarily on objective clinical findings, including speech recognition, and audiometric testing; thus, while the Veteran is competent under the facts of this case to relate symptoms of hearing loss that he experienced at any time, he is not competent to determine that he had a diagnosis for bilateral hearing loss during or within one year of service because such diagnosis requires specific medical knowledge and training in audiology and must be supported by objective clinical findings and audiometric testing that the Veteran is neither trained to administer nor is capable of administering to oneself, even if trained. Therefore, a bilateral hearing loss disability was not shown within the first year of discharge and the presumptions under 38 U.S.C. § 1112 and 38 C.F.R. § 3.309 do not apply. As such, the criteria for presumptive service connection have not been met.

After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence is against a finding of a nexus between the Veteran’s current bilateral hearing loss disability and service.

The Veteran received a VA examination in March 2017. He endorsed in-service noise exposure due to firearms during training, ship/boat engine noise, a paint chipper, a forced loader, anti-aircraft guns, and transports. Post-service, the Veteran endorsed noise exposure due to recreational hunting (with ear protection), working 16 years in the mining industry (with ear protection) where he drove a dozer and a grader, and working 18 years as a truck driver. The examiner opined that the Veteran’s bilateral hearing loss was less likely than not related to service. As support for his reasoning, the examiner noted that the Veteran only had a whisper test performed at entrance to service, but that his separation examination was within normal limits. The examiner then explained, “According to the American College of Occupational Medicine Noise and Hearing Conservation Committee, ‘a noise induced hearing loss will not progress once it is stopped.'” The Board finds this medical opinion highly probative of a negative nexus between the Veteran’s current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez, 22 Vet. App. at 301.

The evidence of record demonstrates acoustic trauma in service and the Veteran has reported noticing that his hearing acuity diminished right after service and continued to worsen since service separation. In this case, the Veteran is competent to report exposure to acoustic trauma because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that the Veteran has provided statements that his hearing loss symptoms were continuous since service. Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay statements regarding continuity of symptomatology provide a direct link between the active service and the current state of his condition). However, his statements of in-service hearing loss are outweighed by the probative value of both the separation examination that showed normal hearing acuity and the VA examiner’s opinion.

The Board has also considered the Veteran’s contentions and other lay statements as they pertain to a nexus between current complaints and service. Lay statements may be competent 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan, 451 F.3d at 1331 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Some medical disorders require specialized training for a determination as to diagnosis and causation; therefore, such issues are not susceptible of lay opinions on etiology, and a veteran’s lay statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (stating that it “is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”).

Hearing loss is a medically complex disease process because of its multiple etiologies, requires specialized testing to diagnose properly and sometimes involves symptomatology that overlaps with other disorders. Woehlaert, 21 Vet. App. at 462 (holding that rheumatic fever is not a condition capable of lay diagnosis). The etiology of the Veteran’s current bilateral hearing loss is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran.

Additionally, the long term symptoms of in-service acoustic trauma requires knowledge of multiple other disorders that also cause symptoms of hearing loss, as well as knowledge of all possible etiologies of hearing loss, not just in-service occurrences. Here, the Veteran is not shown to have such knowledge, training, or experience to differentiate such symptoms or as to all possible etiologies of hearing loss. Based on the above, the Board does not find the Veteran competent to provide evidence of an etiological nexus between his current bilateral hearing loss and service. As such, there is no competent evidence of record suggesting a causal relationship between the Veteran’s disability and service.

After a full review of the record, the weight of the evidence demonstrates that bilateral hearing loss did not have its onset in service, was not manifest to a compensable degree within one year of separation from service, was not chronic or continuous since service and is not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Service Connection for Diabetes and Bilateral Foot Condition

The Veteran contends that he developed diabetes as a result of service. He testified before the undersigned in October 2016 and stated that he first remembers being diagnosed with diabetes in the 1970s. He said that he started treatment with oral pills and now uses insulin to treat this condition. In addition, the Veteran believes that his bilateral foot disability may be related to his diabetes.

First, the Veteran has current diagnoses for diabetes and bilateral foot neuropathy, secondary to diabetes. VA treatment records show that the Veteran currently receives treatment for both conditions. The March and April 2017 VA examinations support the Veteran’s endorsement of being diagnosed with diabetes since the 1970s and bilateral foot neuropathy in 2013.

Next, service treatment records do not show any signs or symptoms for diabetes during service. In other words, the record does not support that the condition was diagnosed during service.

However, an in-service incident alone does not mandate that service connection be granted. The in-service incident must be shown to cause the current diabetes, or to have caused chronic or continuous symptoms of diabetes to a degree of 10 percent or more within one year of service to be presumed as incurred in-service.

As diabetes is a chronic disease under 38 C.F.R. § 3.309(a), the Board will consider whether the Veteran had chronic symptoms in service or continuity of symptomatology since service have been shown.

After a review of the evidence, both lay and medical, the Board finds that the weight of the evidence demonstrates the Veteran did not experience symptoms of diabetes in service and did not exhibit a required combination of manifestations sufficient to identify the disease entity or sufficient observation to establish chronicity at the time to warrant presumptive service connection under 38 C.F.R. § 3.303(b). Furthermore, the weight of the evidence shows that the Veteran’s symptoms of diabetes since service have not been continuous since discharge or within one year thereof to warrant presumptive service connection. Id.

First, regarding chronic symptoms in service, the Board finds that the Veteran was not treated for diabetes in service. The absence of treatment records for diabetes during service does not establish chronic symptoms during this time. However, there is more than just lack of treatment in this case. By his own admission, the Veteran testified before the undersigned in October 2016 and stated that he was not diagnosed with diabetes until the 1970s. He also said that he did not remember having any problems with his blood sugar prior to that diagnosis. Therefore, he did not experience chronic symptoms of diabetes during service. Accordingly, in order to establish service connection on a presumptive basis the Veteran must demonstrate a continuity of symptomatology.

Next, the Board finds that the weight of the evidence demonstrates the Veteran did not experience continuous symptoms of diabetes to a degree of 10 percent or more within one year of service to be presumed as incurred in-service. As discussed above, the Veteran endorsed a diagnosis for diabetes in the 1970s. Furthermore, the record does not indicate that the Veteran received treatment for diabetes during service or that he actually received treatment within the first year following service separation. Therefore, diabetes was not shown within the first year of discharge and the presumptions under 38 U.S.C. § 1112 and 38 C.F.R. §§ 3.303, 3.307, and 3.309 do not apply. As such, the criteria for presumptive service connection have not been met.

Nonetheless, diabetes is currently shown and the evidence reflects a possible in-service event or a possible relationship to service. The next question is whether there is a causal relationship between the current complaints and the in-service event. After a review of all the evidence, both lay and medical, the Board finds that the weight of the evidence is against a finding of a nexus between the Veteran’s current diabetes and service.

On VA examination in April 2017, the examiner noted the Veteran’s own admission that he was not diagnosed with diabetes until the 1970s. The examiner also reported that there is no evidence of record that objectively shows the Veteran had diabetes in service. She commented that diabetes type 2 has several causes, but the two most important ones are genetics and lifestyle. She explained that a combination of these factors could cause insulin resistance, which is the most common cause of type 2 diabetes. The examiner pointed out that at the time of the Veteran’s diabetes diagnosis, he was working as a truck driver, which she said is primarily a sedentary type of employment. Based on the foregoing, the examiner opined that the Veteran’s diabetes was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds this medical opinion highly probative of a negative nexus between the Veteran’s current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez, 22 Vet. App. at 301. As a result, service connection is not warranted on a direct basis.

The Veteran received a VA examination for bilateral foot neuropathy examination in March 2017. The Veteran reported that his feet began hurting and burning in 2013. He also said that the condition has continued to progress since then. The examiner opined, “The veteran’s diabetic peripheral neuropathy, bilateral upper and lower extremities is more likely than not associated with his diabetes.” She explained, “It is well documented in medical literature that diabetic peripheral neuropathy of the bilateral upper and lower extremities is a condition due to diabetes. The Veteran has had diabetes for more than 30 years and this greatly increases his risk for diabetes related conditions.” She continued, “Also, the development of diabetic peripheral neuropathy of the bilateral upper and lower extremities is more likely with uncontrolled diabetes. Although the Veteran had a normal [blood sugar] for the purposes of this evaluation, he is on multiple injections of insulin daily and this suggests poor control.” Additionally, the examiner stated, “There is no medical evidence to suggest that the Veteran’s knee replacement secondary to arthritis would cause foot neuropathy.” She opined, “The Veteran’s foot neuropathy is secondary to his diabetes mellitus type II. Therefore, it is less likely than not that the Veteran’s bilateral foot neuropathy is proximately due to or the result of his left knee condition.”

The Veteran received another VA examination for bilateral foot neuropathy in April 2017. The Veteran reported having neuropathy in the lower extremities “about 7 years ago,” that has progressively worsened. The examiner noted that the Veteran had a current diagnosis for bilateral foot neuropathy, secondary to diabetes, since 2013. She pointed out that the Veteran did not seek treatment for any foot conditions during service and there were no foot abnormalities noted on separation examination in July 1959. The examiner opined that the Veteran’s neuropathy in his bilateral feet is due to his diabetes mellitus, type II, which was not diagnosed until approximately 20 years after service separation. She explained, “Diabetic neuropathies are a family of nerve disorders caused by diabetes. People with diabetes can, over time, develop nerve damage throughout the body. Some people with nerve damage have no symptoms.” The examiner continued, “Others may have symptoms such as pain, tingling, or numbness-loss of feeling-in the hands, arms, feet, and legs. Nerve problems can occur in every organ system, including the digestive tract, heart, and sex organs.” She further explained that the Veteran was diagnosed with diabetes for over 30 years and that this greatly increases the risk for diabetes related conditions.

The April 2017 VA examiner also found that while the Veteran has bilateral knee prosthesis, there is no evidence in the literature that degenerative joint disease or bilateral knee prosthesis would cause diabetic peripheral neuropathy. The Board finds this medical opinion highly probative of a negative nexus between the Veteran’s current condition and service because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. Id.

In this decision, the Board has considered the Veteran’s contentions and lay statements as they pertain to a nexus between current complaints and service. Lay statements may be competent 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan, 451 F.3d at 1331 (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

Some medical disorders require specialized training for a determination as to diagnosis and causation; therefore, such issues are not susceptible of lay opinions on etiology, and a veteran’s statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (stating that it “is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”).

As a layperson, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of diabetes. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service).

Diabetes is a medically complex disease process because of its multiple etiologies, requires specialized testing to diagnose properly and sometimes involves symptomatology that overlaps with other disorders. Woehlaert, 21 Vet. App. at 462 (holding that rheumatic fever is not a condition capable of lay diagnosis). The etiology of the Veteran’s current diabetes is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran. The Board does not doubt that the Veteran is sincere in his belief that the diabetes is related to service. However, there is no evidence of the disability during service or within one year of discharge to warrant service connection on any basis.

The current statements, made in connection with his claim for benefits that maintain symptoms of diabetes due to service, are inconsistent with previous statements made during service. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character); Pond v. West, 12 Vet. App. 341, 345 (1999) (although Board must take into consideration the Appellant’s statements, it may consider whether self-interest may be a factor in making such statements).

Based on the above, the Board does not find the Veteran competent to provide evidence of an etiological nexus between the current diabetes and service. As such, there is no competent evidence of record from the Veteran suggesting a causal relationship between the diabetes and service; therefore, the Board attaches greater probative weight to the March and April 2017 VA examination opinions than to the Veteran’s lay statements.

For the reasons discussed above, the weight of the evidence demonstrates that the Veteran’s current diabetes was not incurred in service, may not be presumed to have been incurred therein, and is not otherwise related to service. Therefore, the claim for service connection for diabetes must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Concerning the bilateral foot disability, in the Veteran’s October 2016 Board hearing testimony he mentioned a possible diagnosis for bilateral foot arthritis. However, the evidence of record does not show a current diagnosis for this disability. A necessary element for establishing entitlement to service connection is the existence of a current disability; it is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). At no time during the appellate period has the Veteran been diagnosed with a bilateral foot arthritis. Therefore, the claim for service connection for a bilateral foot arthritis disability must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

To the extent to which the Veteran has a diagnosis of bilateral foot neuropathy, this condition has been linked to the diabetes. As discussed in detail above, however, service connection for diabetes has been denied; therefore, it cannot serve as the basis for a grant of service connection for a bilateral foot neuropathy. See 38 C.F.R. § 3.310(a). There is no other evidence of record that links the neuropathy to any event or incident of service. As the Veteran has no service-connected diabetes that caused or aggravated the bilateral foot neuropathy, the benefit of the doubt doctrine does not apply, and service connection on a secondary basis must be denied as a matter of law. See id.; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).

VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided a letter to the Veteran in December 2009, prior to the initial adjudication of the service connection claims on appeal. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).

The notice requirements of the VCAA apply to all elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran’s service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran was provided with such notice by the December 2009 letter, including the type of evidence necessary to establish a disability rating and effective dates.

Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the “duty to assist is not boundless in its scope” and “not all medical records . . . must be sought – only those that are relevant to the veteran’s claim”). Here, service records have been obtained as have records of VA and private treatment. Based on the foregoing, the Board finds that VA has met its duty to assist with regard to records development.

The Veteran was afforded VA examinations with respect to his claims. During the examinations, the VA examiners conducted a physical examination of the Veteran with diagnostic testing, were provided the claims file for review, took down the Veteran’s history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion).

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in October 2016. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) essentially requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. 23 Vet. App. 488 (2010). These requirements consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Id. During the hearing, the Veterans Law Judge sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Accordingly, the Veteran is not shown to be prejudiced on this basis. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The actions by the undersigned satisfy the obligations imposed by 38 C.F.R. § 3.103.

All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran’s statements in support of the claim are also of record. The Board has carefully considered such statements, and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran’s claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA’s duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff’d 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

As noted in the Introduction, the Board previously remanded this claim in February 2017. The Board instructed the AOJ to request VA treatment records, schedule VA examinations, and then to readjudicate the claims on appeal with consideration of the additional evidence associated with the claims folder. Since that time, VA issued a supplemental statement of the case that considered the additional, new evidence. As a result, the Board finds substantial compliance with its previous remand instructions, and has properly continued with the foregoing decision. Substantial compliance, rather than strict compliance, is required. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); see also Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board’s duty to “insure [the RO’s] compliance” with the terms of its remand orders).

ORDER

Service connection for a left knee disability is denied.

Service connection for bilateral hearing loss is denied.

Service connection for diabetes mellitus, type 2, is denied.

Service connection for a bilateral foot condition, to include neuropathy caused by diabetes mellitus, type 2, or as due to a left knee disability, is denied.

REMAND

Although the Board regrets the additional delay, a remand is required in this case.

The Veteran asserts that he developed a respiratory disability as a result of service. Specifically, he has testified before the undersigned in October 2016 that he believes he developed a respiratory disability due to asbestos exposure. The Veteran received a VA examination in March 2017. The examiner did not find that the Veteran had a current diagnosis for a respiratory disability. Accordingly, the examiner opined that the Veteran did not have a current respiratory disability related to service, including asbestos exposure. However, VA treatment records from March 2016 show that the Veteran has a current diagnosis for a mild restrictive ventilatory abnormality and mildly deteriorated diffusion capacity, but no obstructive airway disease. Subsequent VA treatment records show a diagnosis for restrictive lung disease. As a result, the March 2017 VA examination contains an inadequate medical opinion regarding the issue of service connection for a respiratory disability because the examiner failed to consider other respiratory diagnoses made during the appeal period. For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination medical opinion failed to provide an adequate rationale to support the conclusion or discuss the contrary evidence associated with the record that supports the Veteran’s claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a medical opinion must “support its conclusion with an analysis that the Board can consider and weigh against contrary opinions[;]” see also Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008) (concluding that a medical opinion is not entitled to any weight if it does not contain a rationale that adequately connects data and conclusions). Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disability. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In light of the above, the Board finds that a new VA examination opinion must be obtained for the respiratory disability.

Accordingly, the issue is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Obtain an addendum VA medical opinion (and schedule the Veteran for a VA examination, if necessary) to address the nature and etiology of any current respiratory condition diagnosed since December 2009. The examiner must obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination and note this in the examination report. The claims file must be made available for review to the examiner.

The examiner must address the following:

a) Whether it is at least as likely as not (50 percent of greater probability) that the Veteran’s respiratory disability is related to service, to include his reports of asbestos exposure in-service.

The examiner should specifically discuss the following: the Veteran’s lay report of an in-service asbestos exposure; his post-service employment as a mineworker (with 23 years of coal dust exposure) and as a tractor-trailer truck driver; a prior history of smoking tobacco; VA treatment records from March 2016 that show a diagnosis for mild restrictive lung disease. For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In rendering the requested opinion, the examiner is advised that the Veteran is competent to report in-service injuries, symptoms and history. Such reports must be specifically acknowledged and considered in formulating any opinions. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding.

All opinions should be supported by a clear rationale.

2. After reviewing the examination report for compliance with this order, undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and the representative should be furnished with a supplemental statement of the case and be afforded the opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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