Citation Nr: 1512970 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 13-07 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement, to service connection for hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for neuropathy of the left upper extremity. 4. Entitlement to service connection for neuropathy of the right upper extremity. 5. Entitlement to service connection for neuropathy of the right lower extremity. 6. Entitlement to service connection for neuropathy of the left lower extremity. REPRESENTATION Veteran represented by: Peter J. Meadows, Attorney at Law ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from August 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the issues on appeal. A claim to reopen service connection for diabetes has been raised in a January 6, 2012 VA primary care record (noting the Veteran's recently diagnosed diabetes for which he was seeing a private endocrinologist), but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 3.157(b)(1). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss manifested as a result of exposure to acoustic trauma during service. 2. The Veteran's tinnitus manifested as a result of exposure to acoustic trauma during service. 3. A generalized acquired sensory motor polyneuropathy, affecting nerves in the bilateral upper extremities and bilateral lower extremities manifested as a result of exposure to herbicides during service in the Republic of Vietnam. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). 2. The criteria for service connection for tinnitus are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). 3. The criteria for service connection for neuropathy of the left upper extremity are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). 4. The criteria for service connection for neuropathy of the right upper extremity are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). 5. The criteria for service connection for neuropathy of the right lower extremity are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). 6. The criteria for service connection for neuropathy of the left lower extremity are met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for the claimed disorder, generally there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). While medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (in some cases, lay evidence will be competent and credible evidence of etiology). Hearing Loss and Tinnitus Here, the Veteran asserts that he has bilateral hearing loss and tinnitus that are due to in-service noise exposure. Specifically, the Veteran described in a March 2011 letter that he sustained acoustic trauma while he was in the performance of his military occupational specialty (MOS) as a construction machine operator. He explained that this work included operating heavy equipment in a quarry with loud noise from the rock crushing machines and blasting noises from the quarry. The Board has no reason to dispute the Veteran's credible lay statement concerning in-service noise exposure, as his MOS would reasonably include regular exposure to loud noises from construction equipment. An August 2011 VA examination audiological exam shows bilateral sensorineural hearing loss sufficient for VA compensation purposes See 38 C.F.R. § 3.385. The VA examiner opined that the Veteran's current hearing loss is not related to military service, although the history of noise exposure in service was noted. The VA examiner reasoned that the Veteran's hearing was found to be within normal limits at the time of his separation from the military and that the March 1964 enlistment and March 1966 separation examinations showed normal hearing bilaterally with no significant threshold shifts. However, the Board emphasizes that the law does not require evidence of a hearing disability in service. Instead, there need only be a basis for attributing the current disorder to an injury in service. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 159 (1993). With regard to tinnitus, the examiner opined that its etiology could not be determined without resorting to speculation, stating that there was insufficient evidence to determine the etiology of the tinnitus. As the rationales for the examiner's opinions are faulty, they are of no probative value. In support of his claim, the Veteran submitted a March 2013 private opinion from G.L.W., M.D., who reported having reviewed the relevant medical records and noted that the Veteran reported in-service exposure to extremely loud noises from air hammers, dynamite, rock crushers, heavy equipment and machine gun fire, without hearing protection. The Veteran was noted to recall the ringing in both ears began while in service and continued to this day. The physician opined that it was highly likely that the Veteran's currently diagnosed tinnitus had its origins in service and is related to service and given his unprotected regular exposure to excessively high decibel noise levels in service and the onset of tinnitus concurrent with such exposure. He also opined that it was at least as likely as not that the Veteran's currently diagnosed hearing loss resulted from acoustic trauma while in service. In December 2013 the Veteran underwent another VA examination. The examination again confirmed the presence of a bilateral hearing loss disability for VA purposes. The examiner gave an opinion stating that in spite of the medical opinion provided by G.L.W., M.D. the previous unfavorable opinion remained unchanged as scientific evidence suggest the current bilateral hearing loss is not caused by nor a result of service. The examiner did not provide any further information about this "scientific evidence" referred to in the unfavorable opinion. Regarding the tinnitus, the examiner continued to repeat the opinion from the prior VA examination of August 2011 that a medical opinion could not be provided without resorting to speculation. The reason speculation was required was based on the findings of normal hearing without threshold shifts in service and the previous opinion being unchanged as to the etiology of the hearing loss. Because the opinion regarding the etiology of hearing loss is based on incomplete information, and essentially repeats the opinion of the prior August 2011 examination, it has no probative value. Likewise the opinion regarding the etiology of the tinnitus continues to lack probative value. The Board finds that the evidence, including the audiological test results from the VA examinations in August 2011 and December 2013, shows bilateral sensorineural hearing loss sufficient for VA compensation purposes and a current diagnosis of tinnitus. 38 C.F.R. § 3.385. Additionally, the Board has conceded the Veteran's in-service noise exposure. Finally, Dr. G.L.W.'s March 2013 opinion, which is only probative medical opinion on the issue of nexus, is in favor of the claims. Accordingly, service connection for hearing loss and tinnitus is warranted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Peripheral Neuropathy The Veteran contends that he has neuropathies affecting both upper and both lower extremities as a result of his Agent Orange exposure in Vietnam. Because the evidence shows the neuropathies affecting all extremities to be of the same type and causation, the Board shall address them together. A Veteran who had active service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Here, the Veteran's exposure to herbicides during his period of active service in the Republic of Vietnam is conceded. If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders, including early-onset peripheral neuropathy. 38 C.F.R. § 3.309(e). Early-onset peripheral neuropathy must 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 need not be transient. See 78 Fed. Reg. 54763 -54766 (September 6, 2013). However, a Veteran is not precluded from establishing the necessary linkage for service connection with proof of direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The medical evidence does not include evidence of a diagnosed neuropathy or other neurological issues affecting either the upper extremities or lower extremities in service, and these were noted to be normal on examinations in service including on entrance in March 1964 and separation in March 1966. However he did injure his right shoulder and left wrist in February 1966 from getting metal fragments of a broken hammer into these areas. His report of medical history in March 1966 is noted to include the Veteran reporting problems with cramps in his legs, but he otherwise denied any neurological problems. The Veteran reported in April 2012 that he had problems with being unable to tolerate anything tight on both feet beginning in 1966, and he described issues with his muscles jerking and affecting his sleep, eventually causing him to seek treatment with a neurologist who diagnosed chemically-induced neuropathy. He has indicated in a March 2011 statement that he was actually diagnosed with neuropathy at a sleep clinic, but the records (which were more than 10 years old) had been destroyed. VA treatment records show that in 2003, the Veteran was being treated by neurology for issues with problems with nerves in his feet and restless leg syndrome (RLS), as well as problems with "tennis elbow." He was noted to be prescribed Neurontin as early as January 2003. The records from 2004 and 2005 are noted to repeatedly address lower extremity issues diagnosed as RLS, with symptoms that included prickling and tingling sensations. Among these was a May 2004 neurology record that assessed RLS, and reported a 20 year history of problems with his feet and legs with "needle type prickly pain" described in his feet and a "funny flowing" sensation down the legs, along with a 5 year history of severe leg jerks. The records from 2004 to 2005 also included some upper extremity problems diagnosed as "tennis elbow' and complaints of left shoulder and arm pain. Continued neurological symptoms, particularly affecting the lower extremities, are shown in records from 2007 with a November 2007 neurological consult record again noting burning pain in both feet. Neurological examination was noted to be significant for decreased sensations in the lower extremities and the initial impression was peripheral neuropathy with questions as to whether it was related to chemical exposure or to diabetes. In January 2008 the Veteran underwent electrodiagnostic testing that included testing of nerves in both the upper extremities and lower extremities. The results of this testing yielded a diagnosis of generalized acquired sensory motor polyneuropathy, which is both axonal and demyelinating affecting all nerves tested. Thereafter the records and reports from VA medical providers from 2008 through 2012 reflect the diagnosis of the polyneuropathy, with the history of chemical exposure to include Agent Orange and the symptoms affecting the lower extremities in particular, said to be longstanding. Significantly, a March 2011 follow-up for chronic medical problems noted issues that included pain and swelling affecting the upper extremities, and long standing pain in the feet since the 1960's with findings of decreased sensations and an assessment of significant peripheral neuropathy of the bilateral feet said to predate a diagnosis of diabetes by several decades. In a June 2011 report, the Veteran's VA neurologist also described the Veteran's neuropathic foot pains as pre-dating any diagnosis of diabetes by decades and confirmed his diagnosis made by the January 2008 electrodiagnostic studies, along with a history of exposure to solvents. Neurological findings were remarkable for decreased sensation, including pinprick in the lower extremities, markedly increased vibration and position sense threshold, and reduced 1+ reflexes and bilateral ankle jerks in the lower extremities. The impression was peripheral neuropathy related to prior chemical exposure and questionable diabetes. This neurologist, F.A.L., M.D, Chief of the Neurology section, confirmed having treated the Veteran earlier in November 2007 and May 2008. A February 2011 VA Agent Orange Registry examination noted the Veteran's claim for neuropathy based on Agent Orange exposure with the Veteran reporting he was diagnosed with this in his twenties but the diagnosing doctor's records were destroyed. Occupationally no information was given to suggest post service chemical exposure, with the Veteran reporting he worked as a mechanical inspector and also did part time electrical and welding work. Following examination, which noted decreased sensation and decreased reflexes in the lower extremities, the diagnosis was peripheral neuropathy of the bilateral upper and lower extremities of unspecified cause. A July 2011 VA examination report reflects a diagnosis of "idiopathic peripheral neuropathy not related to Agent Orange," but then the examiner contradicts this statement by indicating the condition is "due to Agent Orange exposure." Thus, it is of no probative value. The report of a September 2011 VA peripheral nerves examination is noted to have reported an employment history not shown elsewhere in the records of the Veteran reportedly a printer in color corrections for reproduced artwork, and then as a carpenter, and then working as a sulfur plant operator at a chemical plant, and lastly as a building inspector. This examination gave an unfavorable opinion as to the etiology of the Veteran's neuropathy of his hands but the opinion was focused on whether the neuropathy was related to his service connected injury to his right shoulder and left wrist. The opinion failed to address any relationship between the diagnosed generalized acquired sensory motor neuropathy and his Agent Orange exposure. Thus it is of no probative value. A May 2012 letter from E.M., M.D., who is identified as an endocrinologist, is noted to have described the Veteran as having very mild diabetes, controlled by diet alone, but also with a longstanding history of polyneuropathy, that was severe. This physician gave an opinion that his diabetes is not a major contributing factor in the development of his advanced neuropathic symptoms, but cited to a history of significant exposure to Agent Orange in the military. Based on his experience as a physician, he opined that it was this exposure to Agent Orange that is the primary cause of the Veteran's advanced neuropathy. This physician described having seen many patients with similar symptoms of very mild Type 2 diabetes but with severely progressive and debilitating neuropathy. Another letter from a private doctor, G.G. also noted the Veteran's major disability as neuropathy and a history of exposure to Agent Orange. In June 2012, the Veteran's VA neurologist, F.A.L., M.D, Chief of the Neurology section, provided a medical opinion that described the Veteran still having some of the symptoms pertaining to his underlying neuropathy and noted his apparent exposure to Dioxin and Agent Orange. The neurologist then stated "therefore his underlying neuropathy is as likely as not related to past chemical exposure." Following this opinion the neurologist discussed his past history of long standing neuropathic symptoms and treatment, as well as the prior diagnostic testing done and history of chemical exposure. The impression was of peripheral neuropathy related to prior chemical exposure to Dioxin and Agent Orange. Additionally a diagnoses of diabetes and RLS were given. The report of a December 2013 VA fee-basis examination, following examination and review of the records, gave an opinion that the Veteran's neuropathy was not related to service, citing that as per the earlier examination opinion, the Veteran did not meet the criteria for a diabetes mellitus diagnosis. This examination report did not address whether the neuropathy was directly related to Agent Orange exposure, and thus is not shown to be of probative value in this matter. The Board finds that the competent and probative medical evidence supports a finding that the Veteran's peripheral neuropathy is as likely as not related to his chemical exposure to Agent Orange in service. As shown above, the evidence which includes a favorable opinion by his treating neurologist, who is the Chief of the VA's Neurology Section, and is supported by other medical evidence of record, including the opinion of the Veteran's private endocrinologist. The Board further finds that the Veteran's lay contentions regarding the longstanding duration of his neuropathy symptoms affecting his lower extremities are credible and are supported by this favorable medical evidence. Additionally the Board notes that his credibility is supported by the "leg cramps" reported by him in the March 1966 report of medical history. Such complaints could be reasonably be construed to be complaints of neuropathy described in layman's terms. Here in this instance none of the unfavorable VA examination opinions are shown to have probative value because they focused on the question of whether the Veteran's peripheral opinion was related to a diagnosis of diabetes which has yet to be fully confirmed by the VA. None of the VA examination opinions actually addressed the questions answered favorably by the Veteran's VA and private medical providers, specifically whether the peripheral neuropathy is as likely as not caused by his confirmed exposure to Agent Orange. Because these medical opinions support the Veteran's claims, service connection for peripheral neuropathy affecting both upper and both lower extremities is warranted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for hearing loss is granted. Service connection for tinnitus is granted. Service connection for neuropathy of the left upper extremity is granted. Service connection for neuropathy of the right upper extremity is granted. Service connection for neuropathy of the right lower extremity is granted. Service connection for neuropathy of the left lower extremity is granted. ____________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs