Citation Nr: 18132365
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-34 930
DATE:	September 6, 2018
ORDER
1. Entitlement to service connection for bilateral flat foot, to include as secondary to a lumbar strain disability, is denied.
2. Entitlement to service connection for bilateral hearing loss disability is denied.
3. Entitlement to service connection for vertigo is denied.
4. Entitlement to service connection for tinnitus is denied.
5. Entitlement to service connection for residuals of a cold injury is denied.
6. Entitlement to service connection for Raynaud’s syndrome is denied.
7. Entitlement to service connection for headaches is denied.
8. Entitlement to service connection for lumbar strain is denied.
FINDINGS OF FACT
1.  The preponderance of the evidence is against finding that the Veteran’s bilateral flat foot began during active service or is otherwise related to service. 
2. The Veteran’s bilateral hearing loss disability did not manifest in service, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the disability is not otherwise related to service.
3. The preponderance of the evidence is against a finding that the Veteran’s vertigo began during active service or is otherwise related to service.
4. Tinnitus did not manifest in service, did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise related to service.
5.  The preponderance of the evidence is against a finding that the Veteran had a cold injury during active service.
6. The Veteran does not have a current diagnosis of Raynaud’s syndrome and has not had one during the period on appeal, nor does the preponderance of the evidence support a finding that the Veteran had a cold injury during active service.
7.  The preponderance of the evidence is against a finding that the Veteran had headaches or migraines during active service.
8. The preponderance of the evidence is against a finding that the Veteran’s lumbar strain was incurred during active duty service.
CONCLUSIONS OF LAW
1.  The criteria for entitlement to service connection for bilateral flat foot, to include as secondary to a lumbar strain disability, have not been met.  38 U.S.C.§§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
2. The criteria for entitlement to service connection for bilateral hearing loss disability have not been met. 38 U.S.C.§§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)–(b), (d), 3.307, 3.309(a) (2017).
3. The criteria for entitlement to service connection for vertigo have not been met.  38 U.S.C.§§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
4. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C.§§ 1101, 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a)–(b), (d), 3.307, 3.309(a) (2017).
5.  The criteria for entitlement to service connection for residuals of a cold injury have not been met.  38 U.S.C.§§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
6. The criteria for entitlement to service connection for Raynaud’s syndrome have not been met. 38 U.S.C.§§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
7.  The criteria for entitlement to service connection for headaches have not been met.  38 U.S.C.§§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
8. The criteria for entitlement to service connection for lumbar strain have not been met. 38 U.S.C.§§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1964 to March 1967.
The Board acknowledges that additional VA treatment record have been associated with the claims file since the most recent statement of the case (SOC) was issued and the claims being transferred to the Board. However, the Board finds these treatment records are not pertinent to the issues before the Board, and therefore, the Board will proceed with review.
Service Connection
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 
In this case, the some of the disabilities at issue are considered “chronic diseases,” which are listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease 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.  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).  
Additionally, where a Veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.§§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption 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.  Id.
Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b).
The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012).
A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4.
A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.
1. Entitlement to service connection for bilateral flat foot, to include as secondary to a lumbar strain disability
The Veteran contends that he got flat feet while marching in Korea. 
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. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for bilateral flat foot.  
For adjudication purposes, the Board will resolve reasonable doubt in favor of the Veteran and find that he has a current diagnosis of bilateral flat foot. However, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease.  For example, the Veteran’s service treatment records (STRs) are silent for treatment for flat feet. The March 1967 Report of Medical Examination performed at separation shows that clinical evaluation of the feet was normal. Furthermore, at his separation examination, the Veteran specifically denied a history of foot trouble while noting a history of stomach trouble and a reaction to medication during service. In other words, the Board finds that had the Veteran experienced foot pain in service, he would have reported it at that time.
Bilateral foot complaints are not shown until decades following service discharge, which is evidence that weighs against a nexus to service. While the Veteran believes his bilateral flat foot is related to service, the Board finds the Veteran’s concurrent service treatment records, which showed a normal clinical evaluation of the feet at service discharge and the Veteran’s denial of any foot problems, to be more probative than the Veteran’s statements decades after service. As the more probative evidence is against a finding that the Veteran’s bilateral flat foot had its onset in service, the Board finds that the preponderance of the evidence is against a nexus between a current disability and service.
The Board notes that the Veteran also contends that his bilateral flat foot is secondary to his lumbar strain. However, as noted below, the Veteran’s lumbar strain is not service connected, and therefore, service connection cannot be granted on a secondary basis.
2. Entitlement to service connection for bilateral hearing loss disability
The Veteran contends that he has a bilateral hearing loss disability that he attributes to exposure to acoustic trauma during service. The Veteran reported that he was exposed to aircraft noise, weapon noise, power equipment, radio teletype transmission noise, and grenades while in service. The Veteran reported he was not provided ear protection.
The Veteran meets the requirements of a current hearing loss disability for VA purposes as documented in a November 2012 VA examination report.  38 C.F.R. § 3.385.
Sensorineural hearing loss is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.309(b) based on chronic in-service symptoms and continuous post-service symptoms apply. Walker, 708 F.3d at 1331.
The Veteran’s service treatment records (STRs) do not reflect any complaints, treatments, or diagnosis of hearing loss.
Additionally, a March 1967 separation examination report, conducted immediately prior to the Veteran’s discharge from service, shows that a clinical evaluation of the Veteran’s ears was normal. Pure tone thresholds, in decibels, for the Veteran’s ears were as follows:
 	HERTZ
 	500 Hz	1000 Hz	2000 Hz	3000 Hz	4000 Hz
RIGHT	5	0	5	-	0
LEFT	5	0	0	-	0

The Veteran’s private August 2010 audiological testing and December 2012 VA examination, both of which were conducted decades after discharge from service, are the first indications that the Veteran has a diagnosis of a bilateral hearing loss disability. As a result, service connection for bilateral hearing loss disability cannot be presumed, as there is no competent evidence of sensorineural hearing loss disability within one year following service discharge.
There is also no evidence of continuity of symptomatology. Although the Veteran reported exposure to loud noises during service, the STRs do not indicate any complaints of hearing loss in service, and at his exit examination, the Veteran’s hearing was assessed as normal. Additionally, the Veteran denied hearing loss at discharge from service in the corresponding Report of Medical History. As noted above, the Veteran’s treatment records do not indicate a diagnosis of hearing loss disability until April 2010, approximately 43 years after discharge from service. 
When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, his claim must still be reviewed to determine whether service connection can be granted on another basis. See Combee v. Brown, 34 F.3d 1039, 1043–44 (Fed. Cir. 1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection.
The Veteran is competent to report exposure to loud noises in service, and the Veteran specifically cited his exposure to multiple types of noise exposure without ear protection. The Board finds these incidents in service to be credible examples of acoustic trauma in service.
However, the Board finds the preponderance of the evidence is against a nexus between the in-service acoustic trauma and the Veteran’s current bilateral hearing loss disability. The Veteran was afforded a VA examination in December 2012 to determine the nature and etiology of his hearing loss disability. At this VA examination, the examiner opined, after a complete review of the Veteran’s claims file, that the Veteran’s current hearing loss disability was less likely than not attributable to his service, despite the Veteran’s credible reports of in-service noise exposure. The examiner noted that damage from noise exposure is not delayed and would immediately be apparent upon audiological testing, noting that previously noise exposed ears are not more sensitive to future noise exposure and hearing loss due to noise exposure does not progress. The examiner further opined that because the Veteran’s audiogram immediately prior to discharge from service was normal, the Veteran’s audiogram from March 1967 is evidence that the Veteran had recovered from any noise exposure in service without permanent loss.
The Veteran’s allegation of hearing loss being due to in-service noise exposure is outweighed by the December 2012 VA examiner’s opinion.  Absent competent and credible evidence of a nexus between the in-service acoustic trauma and the Veteran’s current bilateral hearing loss disability, service connection cannot be granted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. Thus, the claim for service connection for bilateral hearing loss disability is denied.
3. Entitlement to service connection for vertigo
The Veteran reported at the time he filed his claim for vertigo that he first began experiencing vertigo after he got strep throat for the second time in October 1966. 
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 will resolve reasonable doubt and conclude that the Veteran currently experiences instances of vertigo. However, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C.§§ 1110; 38 C.F.R. § 3.303(a), (d).
The Veteran’s service treatment records (STRs) are silent for treatment for, or complaints of, vertigo in service. While the Veteran believes his vertigo is related to service, the Board finds the Veteran’s concurrent service treatment records to be more probative than the Veteran’s statements decades after service, and at the Veteran’s March 1967 separation examination, the Veteran specifically denied a history of “dizziness or fainting spells,” while noting other issues in service, such as stomach issues. This evidence refutes the Veteran’s allegation of experiencing vertigo in service. As the more probative evidence is against a finding that vertigo had its onset in service, service connection is denied.
4. Entitlement to service connection for tinnitus
The Board finds the Veteran’s lay statements are credible as to a current disability. However, the Board finds the Veteran’s March 1967 separation examination, in which the Veteran reported no abnormalities with his hearing or ears, despite noting other abnormalities at the examination, to be more probative than the Veteran’s statements, made decades after service, reporting tinnitus during basic training.
As the more probative evidence does not support a finding that the Veteran began experiencing tinnitus during or within one year of discharge from service, service connection is not established on a presumptive basis.
Additionally, after a thorough review of the record, the Board finds the preponderance of the evidence is against a nexus between the Veteran’s current disability and in-service noise exposure as the Veteran did not report tinnitus in service at his exit examination, and the first reports of tinnitus came approximately 44 years after discharge from service when the Veteran filed his claim for service connection. Additionally, at a December 2012 VA examination, the examiner opined that the Veteran’s tinnitus was most likely associated with his hearing loss. The examiner further opined that if the Veteran experienced acoustic trauma in the military causing tinnitus, the noise exposure would have also caused hearing loss, which the Veteran’s separation examination did not indicate. Therefore, service connection must also be denied on a direct basis.
In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. Thus, the claim for service connection for tinnitus is denied.
5. Entitlement to service connection for residuals of a cold injury
The Veteran, at a June 2010 VA examination, reported that he experienced a cold injury while serving in Alaska in February 1965. The Veteran reported that he got frost bite after staying outside in negative 54-degree weather and lost feeling in his hands, feet, and ears. The Veteran reported that immediately after the incident he did not seek treatment, but he experienced blisters for three weeks, discoloration, numbness, and tingling. The Veteran reported current symptoms including ulcer scars on his ears and pain in cold weather in the tips and joints of his fingers, toes, hands, and ears. He also reported changes in color, numbness, tingling, sensitivity to cold, toenail fungus, misshapen nails, decreased sensation, changes in the thickness of his skin, and arthritis.
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 the Veteran does have residuals from a cold injury, as noted at the Veteran’s December 2012 VA examination. However, the preponderance of the evidence is against a finding that the Veteran suffered a cold injury during active service, nor are the Veteran’s current residuals of a cold injury otherwise related to an in-service injury, event, or disease.  
The Veteran’s military personnel records do not show that the Veteran had service in Alaska. The Veteran’s military personnel records appear to complete and thorough, indicating service in Vietnam, Korea, Washington, Kentucky, Virginia, Missouri, and a short period of time in Thailand, but there is no indication that the Veteran had service in Alaska, which is where the Veteran contends he was exposed to extreme cold and suffered the initial cold injury. Furthermore, the Veteran’s STRs do not indicate treatment for a cold injury, and in his March 1967 Report of Medical History, which he completed approximately five months after his reported cold injury, the Veteran specifically denied symptoms, such as skin disease, boils, paralysis, loss of arm, leg, finger, or toe, and joint pain, which are symptoms he now indicates he experiences. Additionally, the Veteran did not report that he experienced frost bite or any other cold injury during his service at the March 1967 exit examination. As the Veteran’s military personnel records do not indicate service in Alaska nor do his STRs indicate complaints of residuals of a cold injury while in service, the Board finds that the Veteran’s described cold injury is not associated with his active duty service, and therefore, service connection cannot be granted.
6. Entitlement to service connection for Raynaud’s syndrome
The Veteran contends that he has Raynaud’s syndrome associated with his cold injury in 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 preponderance of the evidence is against a finding that the Veteran has a current diagnosis of Raynaud’s syndrome and has not had one at any time during the pendency of the claim, which is a requirement for service connection. Additionally, as noted above, the preponderance of the evidence is against a finding that the Veteran experienced a cold injury while in service. As such, service connection for Raynaud’s syndrome is not warranted.
7. Entitlement to service connection for headaches
The Veteran contends that he began getting headaches on a regular basis in July 1966 after hearing a high-pitched noise from a teletype machine. The Veteran reported he got medication from the surgeon while in service to treat his headaches. He reports that he now wakes up with a headache every day.
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, while the Veteran is competent to report that he currently experiences daily headaches and he began experiencing regular headaches while in service, the preponderance of the evidence is against finding that his headaches began during active service, or is otherwise related to an in-service injury, event, or disease.  38 U.S.C.§§ 1110; 38 C.F.R. § 3.303(a), (d).
The Veteran’s STRs are silent for treatment for or complaints of headaches in service. While the Veteran believes his headaches are related to service, the Board finds the Veteran’s concurrent service treatment records to be more probative than the Veteran’s statements decades after service, and at the Veteran’s March 1967 separation examination, the Veteran specifically denied a history of “frequent or severe headache,” while noting other issues in service, such as stomach issues. In other words, the Board finds that had the Veteran experienced headaches during service, he would have reported it at that time. As the more probative evidence is against a finding that the Veteran’s headaches had their onset in service or are otherwise related to service, service connection is denied.
8. Entitlement to service connection for lumbar strain
The Veteran contends that he had back pain prior to being diagnosed with hepatitis. He also reports that he has ongoing mild discomfort in his back.
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 an October 2012 x-ray showed degenerative disc disease (DDD) in the Veteran’s lumbar spine, indicating a current disability. However, the preponderance of the evidence is against finding that the Veteran’s DDD of the lumbar spine began during active service, or is otherwise related to an in-service injury, event, or disease.  
The Veteran’s service treatment records (STRs) are silent for treatment for back pain or a back injury. Furthermore, at his separation examination, the Veteran specifically denied a history of “recurrent back pain,” while noting a history of stomach trouble and a reaction to medication during service. In other words, the Board finds that had the Veteran experienced back pain in service, he would have reported it at that time.
While the Veteran believes his back pain is related to service, the Board finds the Veteran’s concurrent service treatment records to be more probative than the Veteran’s statements decades after service. As the preponderance of the evidence is against a finding that DDD of the lumbar spine had its onset in service or is otherwise related to service, service connection is denied.
The Veteran has also suggested that his back was the result of a diagnosis of hepatitis. However, as the Veteran is not service connected for hepatitis, service connection cannot be granted on a secondary basis.
 
A. P. SIMPSON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Keninger, Associate Counsel 

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