HEARING LOSS

NATHANIEL DOAN · 2025 · Case ID: A25020209

MIXED

Summary

The veteran, who served from September 1968 to September 1969, appeals the denial of service connection for several conditions, including left ear hearing loss, diabetes mellitus type II, low back disorder, neck disorder, bilateral hip disorders, and bilateral knee disorders. The Board denied the claim for left ear hearing loss, finding that the audiometric testing indicated Level I hearing acuity, which results in a noncompensable rating, and that the veteran's lay testimony regarding severity was not competent to override the medical findings. For diabetes mellitus type II, the Board found the evidence persuasively weighed against a diagnosis during the relevant period, noting the absence of reported symptoms or treatment from VA providers and the lack of specific diagnostic information in the records. The claims for low back and neck disorders were denied due to a lack of evidence of an in-service event, injury, or illness, and the veteran's discharge was for being over height, not for a back or neck condition. Similarly, the claims for bilateral hip and knee disorders, asserted as secondary to the back and knee conditions, were denied due to a lack of service connection for the primary conditions and no evidence of aggravation by service-connected disabilities. The Board found the evidence persuasively weighed against these claims, rendering the benefit-of-the-doubt doctrine inapplicable. However, the Board remanded claims for hypertension, cardiac arrhythmia, and bilateral peripheral neuropathies, citing a duty to assist error in failing to obtain a medical examination and opinion regarding toxic exposure, which was subsequently conceded by VA.

Rationale

Audiometric testing showed Level I hearing acuity.; No exceptional pattern of hearing loss.; Veteran's lay testimony not competent to override medical findings.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

231219-402064

Full Decision Text

Citation Nr: A25020209
Decision Date: 03/05/25 Archive Date: 03/05/25

DOCKET NO. 231219-402064
DATE: March 5, 2025

ORDER

Entitlement to a compensable rating for left ear hearing loss is denied.

Entitlement to service connection for diabetes mellitus type II, to include as due to toxic exposure, is denied.

Entitlement to service connection for low back disorder is denied.

Entitlement to service connection for neck disorder is denied.

Entitlement to service connection for right hip disorder as secondary to low back disorder is denied.

Entitlement to service connection for left hip disorder as secondary to low back disorder is denied.

Entitlement to service connection for right knee disorder as secondary to low back disorder is denied.

Entitlement to service connection for left knee disorder, to include as secondary to low back disorder is denied.

REMANDED

Entitlement to service connection for hypertension, to include as due to toxic exposure, is remanded.

Entitlement to service connection for cardiac arrhythmia, to include as due to toxic exposure, is remanded.

Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to toxic exposure, is remanded.

Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to toxic exposure, is remanded.

Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to toxic exposure, is remanded.

Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to toxic exposure, is remanded.

FINDINGS OF FACT

1. During the entire period on appeal, the Veteran had no worse than Level I hearing acuity in the left ear.

2. The evidence of record persuasively weighs against finding that the Veteran has had diabetes mellitus type II at any time during or approximate to the pendency of the claim.

3. A low back disorder is not shown to be causally or etiologically related to any injury, event, or illness during service.

4. A neck disorder is not shown to be causally or etiologically related to any injury, event, or illness during service.

5. A right hip disorder is not caused or aggravated by a service-connected disability.

6. A left hip disorder is not caused or aggravated by a service-connected disability.

7. A right knee disorder is not caused or aggravated by a service-connected disability.

8. A left knee disorder is not shown to be causally or etiologically related to any injury, event, or illness during service or caused or aggravated by a service-connected disability.

CONCLUSIONS OF LAW

1. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100.

2. The criteria for service connection for diabetes mellitus type II, to include as due to toxic exposure have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for service connection for low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. The criteria for service connection for neck disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

5. The criteria for service connection for right hip disorder as secondary to low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

6. The criteria for service connection for left hip disorder as secondary to low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

7. The criteria for service connection for right knee disorder as secondary to low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

8. The criteria for service connection for left knee disorder, to include as secondary to low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38
6. The criteria for service connection for left hip disorder as secondary to low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

7. The criteria for service connection for right knee disorder as secondary to low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

8. The criteria for service connection for left knee disorder, to include as secondary to low back disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1968 to September 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2023 by a Department of Veterans Affairs (VA) Regional Office. In the December 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the October 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of entitlement to service connection for hypertension, heart disorder, and bilateral upper and lower extremity peripheral neuropathy, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

In the December 2023 NOD the Veteran included claims for service connection for lung diseases which were not adjudicated in the October 2023 rating decision on appeal. Rather, those claims were deferred in the October 2023 rating decision and adjudicated in a later rating decision issued in April 2024. Therefore, the issue of entitlement to service connection for lung diseases is not on appeal and will not be addressed by the Board herein. The Board notes that the Veteran did timely appeal the April 2024 rating decision addressing entitlement to service connection for lung diseases, which is docketed in another appeal stream to be addressed in a different Board decision at a later date.

In the February 2024 brief submitted by the Veteran's representative, the issue of entitlement to service connection for right ear hearing loss is addressed. However, upon close review of the December 2023 NOD, this issue was not appealed. Rather, the Veteran appealed the denial of an increased rating for his service-connected left ear hearing loss. No mention of the October 2023 denial of service connection for right ear hearing loss can be found in the December 2023 NOD. Therefore, the issue of entitlement to service connection for right ear hearing loss is not on appeal and will not be addressed by the Board herein.

1. Entitlement to a compensable rating for left ear hearing loss.

The Veteran contends entitlement to a compensable rating for left ear hearing loss.

The period on appeal starts on April 18, 2023, the date the VA received the Veteran's claim for an increased rating for left ear hearing loss plus a one-year look back period. 38 C.F.R. § 3.400(o). Disability ratings are determined by applying a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in the light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working
Veteran's claim for an increased rating for left ear hearing loss plus a one-year look back period. 38 C.F.R. § 3.400(o). Disability ratings are determined by applying a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in the light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.3. The basis of a disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative 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); 38 C.F.R. §§ 3.102, 4.3. The benefit-of-the-doubt rule applies when the evidence is in approximate balance or nearly equal. Lynch v. McDonough, 21 F.4th 776 (2021).

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. 38 C.F.R. § 4.85. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86.

The Veteran underwent a VA examination with audiologic testing in August 2023. The pure tone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000

RIGHT 20 25 35 35

LEFT 20 35 45 45

The Veteran underwent a VA examination with audiologic testing in August 2023. The pure tone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000

RIGHT 20 25 35 35

LEFT 20 35 45 45

Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 98 percent in the left ear. No exceptional pattern of hearing was shown. The examiner noted the pure tone threshold average in the right ear was 28.75 and in the left ear was 36.25. These audiometry results equate to Level I hearing acuity in the left ear pursuant to Table VI. The Veteran's nonservice-connected right ear is assigned Level I hearing acuity pursuant to 38 C.F.R. § 4.85(f). Applying the percentage ratings for hearing impairment found in Table VII, such impairment results in a noncompensable rating.

At the VA examination, the Veteran did not report any functional impairment associated with hearing loss. The Veteran has not discussed his hearing loss with his VA providers, nor has he received treatment for hearing loss from them.

To the extent that the Veteran contends his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms capable of lay observation, is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable rating under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to possess. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

The Board acknowledges the Veteran's assertion that his left ear hearing loss warrants an increased rating. However, even after considering such contentions, the Board finds the criteria for a compensable evaluation are not met. Lendenmann, supra. In this regard, rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA's audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran has not otherwise described functional effects that are considered exceptional or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule.

The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected left ear hearing loss; however, the Board finds his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, in regard to such increased rating claim. Doucette, supra.

Therefore, the Board finds that a compensable rating for left ear hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the evidence is persuasively against the Veteran's claim. Therefore, the benefit-of-the-doubt doctrine is not applicable in the instant appeal, and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Lynch, 21 F.4th 776 (2021).

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Calu
(2021).

Service Connection

Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Service connection may be established on a secondary basis for a disability which is due to or the result of service-connected disease or injury. 38?C.F.R. §?3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7?Vet. App.?439, 448 (1995) (en banc); Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023).

A medical opinion must support its conclusion with an analysis that the Board can consider and weigh, as it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Veteran is generally competent to report his own lay symptomatology but not to provide a medical diagnosis. 38 C.F.R. § 3.159(a)(2). Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465, 471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr, supra. While the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, he is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, or to link chronic in-service symptoms to the same diagnosed current disability, or as a substitute for a nexus. Jandreau, supra.

When there is an approximate balance of positive and negative 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); 38 C.F.R. §§ 3.102. The benefit-of-the-doubt rule applies when the evidence is in approximate balance or nearly equal. Lynch, 21 F.4th 776.

2. Entitlement to service connection for diabetes mellitus type II.

The Veteran contends entitlement to service connection for diabetes mellitus type II (diabetes) as due to toxic exposure.

An award of service connection requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer
the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. The benefit-of-the-doubt rule applies when the evidence is in approximate balance or nearly equal. Lynch, 21 F.4th 776.

2. Entitlement to service connection for diabetes mellitus type II.

The Veteran contends entitlement to service connection for diabetes mellitus type II (diabetes) as due to toxic exposure.

An award of service connection requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen, 7 Vet. App. 439; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability").

The requirement of the existence of a current disability is satisfied when a claimant has a disability at the time that she files her claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The record reflects the Veteran has received medical treatment from VA and he has disclosed such treatment on his various applications for benefits over the years. In March 2023, the Veteran reported to his VA provider that he saw non-VA doctors for his chronic medical conditions. Despite being instructed on how to do so in the claims forms, the Veteran did not provide any information regarding his non-VA medical treatment to VA. As such, the duty to assist the Veteran in obtaining such records to substantiate the claim is not applicable. No relevant records have been adequately identified, and the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

Upon careful and thorough review, the Board finds evidence of record persuasively weighs against finding that the Veteran has had diabetes mellitus type II at any time during or approximate to the pendency of the claim. The Veteran's VA medical records do not reflect a diagnosis of diabetes, nor has the Veteran ever reported to his VA providers that his non-VA doctors have ever diagnosed him with diabetes. He also did not report taking any medications for diabetes to his VA providers. The intermittent laboratory results in the VA medical records do not reflect findings indicative of diabetes.

Certainly, the Veteran is competent to report his symptoms and functional impairment, as well as diagnoses by medical professionals treating him. However, here, other than the Veteran's claim for service connection for diabetes, he has not reported any symptoms of or treatment for diabetes or that any medical professional has diagnosed or treated him for diabetes. Further, because there is no evidence of a current disability, any duty to assist the Veteran by obtaining an examination does not apply.

Accordingly, the evidence of record persuasively weighs against awarding service connection for diabetes, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 C.F.R. § 5107; 38 C.F.R. § 3.102; Lynch, 21 F.4th 776 (2021).

3. Entitlement to service connection for low back disorder.

The Veteran contends entitlement to service connection for bilateral lumbosacral disorder, stating he was discharged from service for a back disorder.

As favorably found by the AOJ, the Veteran has a current disability manifested by low back pain. VA medical records from March 2023 note the Veteran has low back pain. VA medical records also show the Veteran also reported low back pain in 2012. In light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board finds it is appropriate to recharacterize the claim as entitlement to service connection for a low back disorder.

The Veteran's service treatment records show the Veteran underwent an examination in
to service connection for low back disorder.

The Veteran contends entitlement to service connection for bilateral lumbosacral disorder, stating he was discharged from service for a back disorder.

The Veteran's service treatment records show the Veteran underwent an examination in July 1969 showing he was over maximum height for service. The examination of his spine was normal. Military personnel records show the Veteran requested separation due to being over height, stating it interfered with the performance of his duties. While he was physically qualified for duty, his separation request was authorized. The Veteran underwent another examination in September 1969. Again, the Veteran was noted to be over the maximum height for service, and his spine examination was normal. Service treatment records show the Veteran received periodic medical treatment during his service, but he did not report low back problems at any of these visits.

Upon review, the Board finds a low back disorder is not shown to be causally or etiologically related to any injury, event, or illness during service. The Board has considered the Veteran's lay assertion in his claim application as to the etiology of his low back disorder; however, as a lay person he does not possess the requisite training and experience necessary to address such complex medical matters. Jandreau, supra. Woehlaert, supra. Further, the record reflects the Veteran was discharged due to being over the maximum height for service at the time, rather than any injury, event, or illness related to his low back. Because there is no evidence, including lay evidence, of an in-service event, injury, or disease relative to the Veteran's low back, there was also no duty to assist the Veteran by obtaining a medical examination or medical opinion. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

Consequently, service connection for low back disorder is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the competent, probative evidence weighs persuasively against the Veteran's claim for service connection. As such, that doctrine is not applicable in the instant appeal, and the claim for service connection for low back disorder must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, 21 F.4th 776.

4. Entitlement to service connection for neck disorder.

The Veteran contends entitlement to service connection for degenerative arthritis of the cervical spine, stating he was discharged due to back disorder. He has also previously characterized this claim as one for neck pain.

In light of Clemons, supra, the Board finds it is appropriate to recharacterize the claim as entitlement to service connection for a low back disorder. As favorably found by the AOJ, VA medical records show a diagnosis of polyarthralgia of unspecified joint or extremity. However, such record does not indicate that that this diagnosis is related to the Veteran's neck or cervical spine. Service treatment records show the Veteran received periodic medical treatment during his service, but the Veteran did not report neck problems at any of these visits. The Veteran's July and September 1969 examinations did not reveal any neck problems. VA medical treatment records are also silent for any complaints of neck pain.

Upon review, the Board finds a neck disorder is not shown to be causally or etiologically related to any injury, event, or illness during service. The Board has considered the Veteran's lay assertion in his claim application as to the etiology of a neck disorder; however, as a lay person he does not possess the requisite training and experience necessary to address such complex medical matters. Jandreau, supra. Woehlaert, supra. Further, the record reflects the Veteran was discharged due to being over the maximum height for service at the time, rather than any injury, event, or illness related to his back or neck. Because there is no evidence, including lay evidence, of an in-service event, injury, or disease relative to the Veteran's neck, there was also no duty to assist the Veteran by obtaining a medical examination or medical opinion. McLendon, supra.

Consequently, service connection for neck disorder is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the competent, probative evidence weighs persuasively against the Veteran's claim for service connection.
andreau, supra. Woehlaert, supra. Further, the record reflects the Veteran was discharged due to being over the maximum height for service at the time, rather than any injury, event, or illness related to his back or neck. Because there is no evidence, including lay evidence, of an in-service event, injury, or disease relative to the Veteran's neck, there was also no duty to assist the Veteran by obtaining a medical examination or medical opinion. McLendon, supra.

5. Entitlement to service connection for right hip disorder.

6. Entitlement to service connection for left hip disorder.

The Veteran contends entitlement to degenerative joint disease or degenerative arthritis of the bilateral hips as secondary to back and knee disorders.

In light of Clemons, supra, the Board finds it is appropriate to recharacterize the claims as entitlement to service connection for a left hip disorder and a right hip disorder. As favorably found by the AOJ, the Veteran has been diagnosed with ostearthritis of unspecified joint or extremity. However, the VA medical record reflecting this diagnosis does not indicate that such is related to his hips. VA records show that in 2012 the Veteran complained of pain in all of his joints. VA medical records are silent for any complaints of right or left hip pain relative to the date of the claim.

Upon review, the Board finds a right hip disorder and a left hip disorder is not caused or aggravated by a service-connected disability. The record reflects the Veteran is in receipt of service connection for left ear hearing loss and tinnitus. The Veteran does not contend that his right or left hip disorder is caused or aggravated by his service-connected left ear hearing loss or tinnitus, and the probative evidence also does not show that a right or left hip disorder is caused or aggravated by service-connected left ear hearing loss or tinnitus. As further discussed below, service connection for right knee disorder or left knee disorder is not warranted. With no evidence of a service-connected condition which could be associated with a right or left hip disorder, there was no duty to assist the Veteran by obtaining a medical examination or medical opinion. McLendon, supra.

Consequently, service connection for right or left hip disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the evidence is persuasively against the Veteran's claim of entitlement to service connection for right or left hip disorder as secondary to service-connected disability. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, Lynch, 21 F.4th 776.

7. Entitlement to service connection for right knee disorder.

8. Entitlement to service connection for left knee disorder.

The Veteran contends entitlement to degenerative joint disease or degenerative arthritis of the bilateral knees as secondary to back disorder.

In light of Clemons, supra, the Board finds it is appropriate to recharacterize the claims as entitlement to service connection for a right knee disorder and a left knee disorder. As favorably found by the AOJ and confirmed at a January 2019 VA examination, the Veteran has a current disability of degenerative arthritis of the right and left knees. 2008, 2012, and 2019 X-rays of the Veteran's bilateral knees show osteoarthritis and degenerative changes.

As favorably found by the AOJ, service treatment records show complaints and/or treatment for trick left knee in September 1968. Service treatment records show the Veteran was examined upon reporting for recruit training in September 1969 and reported a trick left knee with pain that gives out sometimes. His August 1968 entrance examination made no mention of this. At both examinations, the Veteran was found to be physically qualified for duty. Service treatment records show the Veteran received periodic medical treatment during his service, but the Veteran did not report knee problems at any of these visits. The Veteran's July and September 1969 examinations did not reveal any knee problems.

The January 2019 VA examiner stated that the Veteran's left or right knee pain was less likely than not incurred in or caused by the mention of left knee pain during service. They explained that there was no injury, accident, or
treatment records show the Veteran was examined upon reporting for recruit training in September 1969 and reported a trick left knee with pain that gives out sometimes. His August 1968 entrance examination made no mention of this. At both examinations, the Veteran was found to be physically qualified for duty. Service treatment records show the Veteran received periodic medical treatment during his service, but the Veteran did not report knee problems at any of these visits. The Veteran's July and September 1969 examinations did not reveal any knee problems.

The January 2019 VA examiner stated that the Veteran's left or right knee pain was less likely than not incurred in or caused by the mention of left knee pain during service. They explained that there was no injury, accident, or chronic condition of the left knee noted during service other than the single examination report. The VA examiner further explained that the current diagnosis of bilateral knee degenerative arthritis was thought to be a normal physiological process associated with aging and obesity.

Upon review, the Board finds a right knee disorder and a left knee disorder is not caused or aggravated by a service-connected disability. The Veteran is in receipt of service connection for left ear hearing loss and tinnitus. The Veteran does not contend that his right or left knee disorder is caused or aggravated by his service-connected left ear hearing loss or tinnitus, and the probative evidence also does not show that a right or left knee disorder is caused or aggravated by service-connected left ear hearing loss or tinnitus. As discussed above, service connection for low back disorder is not warranted. With no evidence of a service-connected condition which could be associated with a right or left hip disorder, there was no duty to assist the Veteran by obtaining a medical examination or medical opinion. McLendon, supra.

The Board also finds that a left knee disorder is not shown to be causally or etiologically related to any injury, event, or illness during service. The Board relies on the VA examiner's opinion in this respect, which is supported by the record as a whole. The Veteran does not allege an in-service onset of his left knee disorder, nor does he allege chronicity and continuity of such since service. The Veteran has not provided any lay statement indicating that his left knee problems persisted after the September 1968 notation.

Consequently, service connection for right or left knee disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the evidence is persuasively against the Veteran's claim of entitlement to service connection for right or left knee disorder as secondary to service-connected disability. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, Lynch, 21 F.4th 776.

REASONS FOR REMAND

1. Entitlement to service connection for hypertension.

2. Entitlement to service connection for heart disorder.

3. Entitlement to service connection for right lower extremity peripheral neuropathy.

4. Entitlement to service connection for left lower extremity peripheral neuropathy.

5. Entitlement to service connection for left upper extremity peripheral neuropathy.

6. Entitlement to service connection for right upper extremity peripheral neuropathy.

The Veteran contends entitlement to service connection for hypertension, heart disorder, and bilateral upper and lower extremity peripheral neuropathy. He asserts he was exposed to herbicides during his time serving on the USS Ticonderoga. The Board does not find a basis for additional development on this contention and does not concede exposure to herbicide agents in this decision. However, the record also reasonably raises another theory of entitlement: disability caused by toxic exposure.

As favorably found by the AOJ and confirmed by VA medical records, the Veteran has been diagnosed with hypertension, cardiac arrhythmia, and peripheral neuropathy. A medical nexus opinion and examination must be obtained when there is evidence of a current disability and participation in a toxic exposure risk activity, but insufficient evidence to establish service connection. 38 U.S.C. § 1168. Subsequent to the rating decision on appeal, VA conceded the Veteran's exposure to environmental hazards based on a February 2024 VA memo. However, the military personnel records in the file before the rating decision on appeal was issued contained the information showing exposure to environmental hazards. Despite having this information before issuing the rating decision on appeal, the AOJ did not properly develop the facts regarding the Veteran's participation in toxic exposure risk activities and his toxic exposure. Failure to do so was a duty to assist error. However, the because the appropriate development has since occurred, the Board's remand directives do not include completing this development.

More importantly, there was evidence of current disabilities of hypertension, cardiac arrhythmia, and peripheral neuropathy and of toxic exposure, but insufficient evidence to establish
appeal, VA conceded the Veteran's exposure to environmental hazards based on a February 2024 VA memo. However, the military personnel records in the file before the rating decision on appeal was issued contained the information showing exposure to environmental hazards. Despite having this information before issuing the rating decision on appeal, the AOJ did not properly develop the facts regarding the Veteran's participation in toxic exposure risk activities and his toxic exposure. Failure to do so was a duty to assist error. However, the because the appropriate development has since occurred, the Board's remand directives do not include completing this development.

More importantly, there was evidence of current disabilities of hypertension, cardiac arrhythmia, and peripheral neuropathy and of toxic exposure, but insufficient evidence to establish service connection at the time the rating decision was issued. Thus, failure to obtain a medical examination and opinion pursuant to the provisions of 38 U.S.C. § 1168 was a duty to assist error, and remand is warranted to correct it. 38 C.F.R. § 20.802(a).

The matters are REMANDED for the following action:

Afford the Veteran with an appropriate examination to determine the nature and etiology of his hypertension, cardia arrhythmia, and peripheral neuropathy. The record, to include a copy of this Remand, must be made available to the medical professional. All indicated tests and studies should be accomplished.

Following a review of the relevant record, and even if an examination is not completed, the medical professional is asked to address the following:

Is it as approximately likely as not that the Veteran's hypertension, cardiac arrhythmia, or peripheral neuropathy is related to the Veteran's in-service toxic exposure?

The medical professional must consider the total potential exposure through all applicable deployments and the synergistic, combined effect of all toxic exposure risk activities of the Veteran.

A rationale for any opinion offered should be provided.

Nathaniel Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Sasha Larie Boersma

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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