Citation Nr: 1419081 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 10-44 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for bilateral tinnitus. 4. Entitlement to service connection for left upper extremity peripheral neuropathy (PN), claimed as due to exposure to chemical herbicides. 5. Entitlement to service connection for right upper extremity PN, claimed as due to exposure to chemical herbicides. 6. Entitlement to service connection for left lower extremity PN, claimed as due to exposure to chemical herbicides. 7. Entitlement to service connection for right lower extremity PN, claimed as due to exposure to chemical herbicides. 8. Entitlement to service connection for a skin condition, claimed as due to exposure to chemical herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board is of the opinion that additional evidentiary development is required before the Veteran's claims are adjudicated. Hearing Loss and Tinnitus The Veteran contends that he is entitled to service connection for bilateral hearing loss and tinnitus as the disabilities are related to in-service exposure to large and small weapons as well as jet engines. At the outset, the Board notes that the Veteran's military occupation was military police officer; therefore, in-service acoustic trauma is conceded. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304 (2013). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2013). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2013). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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 (2013). The United States Court of Appeals for Veterans Claims (Court) has held that "the threshold for normal hearing is from 0 to 20 dB [decibels], and higher threshold levels indicate some degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The evidence of record shows that the Veteran's left ear hearing loss pre-existed military service. This finding is based on the Veteran's March 1972 enlistment examination, as demonstrated by the 30 decibel auditory threshold at 2000 Hertz (HZ). Hensley, 5 Vet. App. 155, 157. Thus, the Veteran had left ear hearing loss that preexisted service, and the presumption of soundness does not apply for the left ear. 38 U.S.C.A. § 1111 (West 2002). Entitlement to service connection can still be granted, however, if the pre-existing disability was aggravated by service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. § 3.306 (2013). The Veteran was afforded a VA audiological examination in June 2010 that showed bilateral hearing loss per VA regulations and a diagnosis of bilateral tinnitus. The VA examiner opined that the Veteran's hearing loss was not due to loud noise exposure while in the service; left ear hearing loss was not permanently aggravated by loud noise exposure while in the service; and tinnitus was less likely as not due to loud noise exposure while in the service. The examiner stated that the Veteran's entrance examination indicated a hearing deficit from 2000 to 4000 HZ in the left ear, a threshold shift in the high frequencies of 5 to 10dB was indicated bilaterally, and the change in thresholds from entrance to separation was not outside of a normal function seen over this period of time. The examiner also stated that as a deficit was identified at induction, it was her opinion that the Veteran's tinnitus was less likely as not due to loud noise exposure while in the service. The Board finds that the June 2010 opinions are inadequate for adjudication purposes for the claims of service connection for bilateral hearing loss and tinnitus. On remand, the AOJ must request an addendum opinion as to whether the pre-existing left ear hearing loss underwent a worsening in service, and if so, whether it clearly and unmistakably was not aggravated beyond that which would be due to the natural progression of the disease. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As noted above, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2013). Moreover, in regards to the claim for right ear hearing loss and bilateral tinnitus, the Board finds the June 2010 opinions to be conclusory at best, providing very little rationale, and points out that evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385) and a medically-sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley, 5 Vet. App. 155, 159. Peripheral Neuropathy (PN) and Skin Condition The Veteran contends that he has PN of the bilateral upper and lower extremities and a skin condition as related to his active service. Particularly, he claims that his PN and skin condition are related to his exposure to Agent Orange while he was stationed in Vietnam. Service personnel records confirm service in the Republic of Vietnam; exposure to herbicides is conceded. The Board notes that the Veteran has been diagnosed with ulnar neuropathy; peripheral vascular disease (leg/foot), injury to peroneal nerve (foot drop), and tinea/tinea unguium. VA is obliged to provide an examination when the record contains competent evidence that the claimant has signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of symptoms capable of lay observation. See id. The threshold for finding a link between current disability and service is low. See Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon at 83. Under the circumstances, the Board finds that the duty to assist set forth at 38 C.F.R. § 3.159 require that the Veteran be scheduled for a VA examination in response to his claim for service connection for PN and a skin condition. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding medical records pertaining to treatment or examination of the claimed disabilities on appeal, to specifically include any outstanding VA treatment records. 2. Provide the claims folder to the VA examiner who conducted the June 2010 VA audio examination. The examiner should be requested to review the claims folder and provide an addendum in which she responds to the following questions: (a) With respect to left ear hearing loss, the examiner should determine if the disability worsened in service. If it worsened, the examiner is requested to provide an opinion as to whether the Veteran's left ear hearing loss was clearly and unmistakably not aggravated by service. In other words, if there was an increase, was it clearly and unmistakably due to the natural progression of the disease. Aggravation means a permanent worsening beyond the natural progression of the disease. Clear and unmistakable evidence is obvious and manifest. (b) Is it at least as likely as not (a 50 percent or better probability) that the Veteran's right ear hearing loss had its onset in service, or is the result of disease or injury incurred or aggravated during service, to specifically include the confirmed in-service noise exposure from large and small weapons as well as jet engines? (c) Is it at least as likely as not (a 50 percent or better probability) that the Veteran's tinnitus had its onset in service, or is the result of disease or injury incurred or aggravated during service, to specifically include the confirmed in-service noise exposure from large and small weapons as well as jet engines? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the June 2010 examiner is unavailable, the claims folder should be reviewed by another examiner with appropriate expertise who should be requested to provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 3. Then, the Veteran should be afforded a VA examination by a neurologist to determine the etiology of his claimed peripheral neuropathy of the bilateral upper and lower extremities, diagnosed as ulnar neuropathy, peripheral vascular disease (leg/foot), and injury to peroneal nerve. The claims file must be provided to the examiner and reviewed prior to the examination. All indicated evaluations, studies, and tests should be accomplished and any such results must be included in the examination report. After performing the examination, the examiner should opine as to the following: Whether it is at least as likely as not (a 50 percent or better probability) that any currently diagnosed neuropathy, to include peripheral neuropathy of the bilateral upper and lower extremities, had its onset in service or is etiologically related to his active service, to include his conceded exposure to Agent Orange. 4. Then, the Veteran should be afforded a VA examination to determine the etiology of the claimed skin condition, diagnosed as tinea/tinea unguium. The claims file must be provided to the examiner and reviewed prior to the examination. All indicated evaluations, studies, and tests should be accomplished and any such results must be included in the examination report. After performing the examination, the examiner should opine as to the following: Whether it is at least as likely as not (a 50 percent or better probability) that any currently diagnosed skin condition, to include tinea/tinea unguium, had its onset in service or is etiologically related to his active service, to include his conceded exposure to Agent Orange. 5. Then, readjudicate the issues on appeal in light of all pertinent evidence and legal authority. If the benefits sought on appeal are not granted to the Veteran's satisfaction, furnish the Veteran and his representative a Supplemental Statement of the Case. They should be afforded the requisite opportunity to respond. Thereafter, if indicated, return the case to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. 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). This claim 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. 2013). _________________________________________________ BETHANY L. BUCK 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) (2013).