Citation Nr: 1314990 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 10-14 181 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide exposure or secondary to service connected left ankle strain. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide exposure or secondary to service connected right ankle strain. 3. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active service from January 1965 to January 1968, including a tour in Vietnam from August 1965 to August 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied service connection for bilateral hearing loss and peripheral neuropathy of the left and right lower extremities. The Veteran submitted a Notice of Disagreement (NOD) with this determination in May 2009, and perfected his appeal in March 2010. In an October 2010 rating decision, the RO again denied the Veteran's claims of service connection for bilateral hearing loss and peripheral neuropathy of the left and right lower extremities. The Veteran was afforded a Travel Board Hearing before the undersigned in March 2012. A written transcript of that hearing was prepared and incorporated into the evidence of record. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A review of the record discloses further development is necessary prior to the adjudication of the Veteran's claims of entitlement to service connection for bilateral hearing loss and peripheral neuropathy of the right and left lower extremities. A. Bilateral Hearing Loss The Veteran contends that he currently suffers from bilateral hearing loss due to noise exposure during active military service. Specifically, he alleges that he was exposed to loud noise from combat in Vietnam, howitzers guns, and engine noise from helicopters, jets, and prop planes. At the March 2012 hearing, the Veteran testified to his in-service noise exposure. He reported that he was never given hearing protection when he was in-service, especially around howitzers and mortars. Additionally, he stated that he did not undergo any audiological testing at his time of discharge. He reported that he just wanted to get out of service, so he reported to the clerk that he had nothing to claim at that time. At the February 2009 VA examination, the Veteran reported significant noise exposure as a result of combat experience in Vietnam. The Veteran also reported employment in a manufacturing center for 30 years, where a strict hearing conservation program was utilized. The Veteran also stated that he was first evaluated at his initial employment date in March 1968, at which time he relayed that hearing loss was noted. He reported mandatory use of hearing protection during his time as a civilian employee. He denied a history of chronic recreational noise exposure. The Veteran was afforded another VA audiological examination in December 2011. After audiological testing was performed, the VA examiner diagnosed the Veteran with sensorineural hearing loss in the frequency range of 500-4000 Hz, bilaterally. The examiner concluded that it was less likely than not that the Veteran's hearing loss was caused by or a result of an event in military service. The examiner noted that the Veteran's hearing sensitivity was normal at the time of his military discharge. Additionally, the Veteran had significant history of civilian occupational noise exposure post military. The Board finds that this examination report is inadequate for rating purposes. The Board notes that the absence of in-service evidence of hearing disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385 (2012), is not fatal to the claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Court has held that the regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current hearing disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. See 38 U.S.C.A. § 1110; C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. Additionally, the examiner did not discuss the June 1966 service treatment record that documented the Veteran's complaint of his ears ringing. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history). Therefore, the VA audiological examination should be returned for an addendum opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In the addendum opinion, the VA examiner must address whether any hearing loss is otherwise related to in-service noise exposure notwithstanding the fact that hearing loss was not shown in service. Lastly, an effort should be made to obtain any audiological testing results from the Veteran's place of employment. As these private treatment records may contain information pertinent to his claim, they are relevant and should be obtained. See 38 C.F.R. § 3.159(c)(2) (2012). B. Peripheral Neuropathy The Veteran contends that he currently suffers from peripheral neuropathy of the lower extremities due to his active military service. Specifically, the Veteran contends that his peripheral neuropathy is due to herbicide exposure in Vietnam or the result of multiple traumas from parachute jumps. The Veteran served on active duty from January 1965 to January 1968, including a tour in Vietnam from August 1965 to August 1966. It therefore is presumed that he was exposed to Agent Orange or other herbicide agent during that service in Vietnam. The current law shows that acute and subacute peripheral neuropathy is on the list of diseases presumptively associated with said exposure, even if there is no record of the disease in service. 38 U.S.C.A. § 1116 ; 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). The term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e) , Note 2; Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). [The Board, however, is mindful that VA is proposing to amend §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term "early-onset peripheral neuropathy" and removing Note 2 to § 3.309(e), which currently requires, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Under these proposed amendments, peripheral neuropathy would still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it would no longer need to be transient.] Significantly, the availability of presumptive service connection for a disability based on exposure to herbicides, however, does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving exposure to Agent Orange). In a June 2009 letter, Dr. S.S. reported that the Veteran had painful peripheral neuropathy and evidence of entrapment neuropathy. Dr. S.S. noted that the Veteran had undergone surgical intervention for this peripheral neuropathy and that "we cannot rule out etiology of herbicides." In a January 2010 letter, Dr. S.S. reported that he had treated the Veteran for peripheral neuropathy of insidious onset since January 2007. Dr. S.S. maintained that an identifiable source could not be identified and the Veteran's military service with exposure to herbicides could not be excluded as a causative factor. The Board observes that these opinions are not to the requisite degree of medical certainty. It cannot be merely within the realm of medical possibility that the Veteran's peripheral neuropathy is due to herbicide exposure; rather, it must be a reasonable medical probability that this is the case. The Veteran was afforded a VA examination in December 2011. The examiner diagnosed the Veteran with peripheral nerve disease/axonal loss moderate sensory polyneuropathy. The examiner concluded that the Veteran's current peripheral neuropathy of the lower extremities was less likely due to his service-connected ankle disability. The examiner stated that the EMG did not indicate this. An axonal loss polyneuropathy was the result of some type of metabolic or toxic derangement of neurons. It was the most common response of neurons to metabolic or toxic disturbances, and may be caused by metabolic diseases such as diabetes, renal failure, deficiency syndromes such as malnutrition and alcoholism, or the effects of toxins or drugs such as chemotherapy. However, the examiner did not state if the toxins referred to in his opinion were a reference to herbicides from the Veteran's service in Vietnam, as the Veteran contends. Additionally, the examiner did not address the Veteran's private physician's statement that noted that herbicide exposure could not be ruled out as a possible cause of peripheral neuropathy or trauma. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history). Furthermore, at the March 2012 hearing, the Veteran related his peripheral neuropathy to his in-service parachute jumps. The Veteran reported a tingling sensation in his feet from trauma sustained after a parachute jump. Although the December 2011 VA examiner noted an opinion based on secondary service connection to his service-connected bilateral ankle disability, an opinion to discuss direct service connection for his peripheral neuropathy of the lower extremities has not been obtained. Based on the evidence of record, VA must consider whether service connection for a peripheral neuropathy is warranted on this theory of entitlement as well. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (The Board is required to consider all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process). The examiner should also address the aggravation aspect of the secondary service connection claim. Therefore, the VA peripheral nerve examination should be returned for an addendum opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request records pertaining to any audiological testing performed by the Veteran's place of employment (the manufacturing center he reported working for 30 years). All attempts to procure these records should be documented in the claims file. If the AMC cannot obtain the records, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Return the claims file to the VA examiner who conducted the December 2011 audiological examination for an addendum opinion regarding the issue of entitlement to service connection for bilateral hearing loss. A copy of this remand and all relevant medical records should be made available to the examiner. Accordingly, the examiner is asked to again review the pertinent evidence, including the Veteran's lay assertions, treatment records (June 1966 service treatment record showing complaints of ears ringing), and the results of the prior examinations. Then, based on the record review and examination results, the examiner is requested to provide an opinion on the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's bilateral hearing loss is related to noise exposure in the Veteran's military service, including on a delayed or latent onset theory of causation. In so doing, notwithstanding a showing of normal hearing on audiometric testing in service, the examiner must accept as fact that the Veteran was exposed to noise as from aircrafts and weaponry fire, and that the Veteran has experienced what he believes as symptoms of hearing loss in service that continued ever since service. The opinion should be based on the foregoing factual premise and based on whether the findings shown on the December 2011 audiometric testing are consistent with individuals exposed to noise from aircraft and military artillery. If the examiner is unable to provide an opinion without a resort to speculation even with the parameters set forth above, then a thorough explanation as to why an opinion cannot be rendered should be provided. If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the above opinion request. The examiner must provide a supporting rational for the opinion provided. If is determined that another examination is necessary such should be scheduled. 3. Return the claims file to the VA examiner who conducted the December 2011 peripheral nerves examination for an addendum opinion regarding the issue of entitlement to service connection for peripheral neuropathy of the lower extremities. A copy of this remand and all relevant medical records should be made available to the examiner. Accordingly, the examiner is asked to again review the pertinent evidence, including the Veteran's lay assertions, treatment records, and the results of the prior examinations. Then, based on the record review and examination results, the examiner is requested to provide an opinion on the following: A. Is it at least as likely as not (i.e., there is at least a 50 percent probability) that peripheral neuropathy of either lower extremity is due to the impact from parachute jumps the Veteran underwent as a paratrooper in service. The Veteran performed over 100 jumps carrying a bag that weighed 60 to 70 pounds. The examiner should consider the article by Dr. A.B. titled Complications of Ankle Sprains (nerve entrapment) (contained in the claims file). In addition, the Board understands the examiner's finding that the peripheral neuropathy was less likely caused by the ankle strain, in and of itself. The examiner must now also address whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's peripheral neuropathy of the lower extremities was aggravated by the service-connected ankle strains. If such aggravation is found, the examiner should address the following medical issues: (a) the baseline manifestations of the Veteran's peripheral neuropathy found prior to aggravation; and (b) the increased manifestations that are proximately due to the ankle strain. B. Is it at least as likely as not (i.e., there is at least a 50 percent probability) that peripheral neuropathy of either lower extremity is due to the Veteran's presumed exposure to herbicides during service. (This question is in light of the examiner's finding that "[a]n axonal loss polyneuropathy is the result of some type of metabolic or toxic derangement of neurons. It is the most common response of neurons to metabolic or toxic disturbances, and may be caused by metabolic diseases such as diabetes, renal failure, deficiency syndromes such as malnutrition and alcoholism, or the effects of toxins or drugs such as chemotherapy." (emphasis added)). The examiner must discuss the opinions provided by Dr. S.S. in June 2009 and January 2010. For purposes of making this determination, the examiner should accept as true that the Veteran was exposed to herbicides during service. If this examiner is not available, send the claims file and a copy of this remand to another appropriate examiner to address the above opinion request. The examiner must provide a supporting rational for the opinion provided. If is determined that another examination is necessary such should be scheduled. 4. Thereafter, the AMC/RO must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinions to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the above action, the claim should be readjudicated. If a claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).