Citation Nr: 1634678 Decision Date: 09/02/16 Archive Date: 09/09/16 DOCKET NO. 10-24 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for neuropathy of the left lower extremity. 3. Entitlement to service connection for neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from March 1971 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In January 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board previously remanded this matter for additional development in May 2015. The Board finds that there has been substantial compliance with the May 2015 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board previously also remanded the issues of service connection for tinea cruris, service connection for a left hand disability characterized by numbness and tingling in the left wrist and hand, service connection for a neck disability, service connection for a low back disability and service connection for sleep apnea. A December 2015 rating decision granted service connection for sleep apnea, left carpal tunnel syndrome, a neck disability diagnosed as degenerative joint disease, a low back disability diagnosed as degenerative joint disease and tinea cruris. The grant of service connection for a left hand disability, a neck disability, a low back disability and sleep apnea constitutes a full grant of the benefits sought. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, those issues are no longer before the Board. The issues of entitlement to service connection for neuropathy of the left and right lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a current right ear hearing loss disability as defined by VA regulation. CONCLUSION OF LAW Service connection is not warranted for right ear hearing loss. 38 U.S.C.A. § 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In this case, a May 2007 letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. The May 2007 letter explained how disability ratings and effective dates are determined. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's increased rating claims. The service treatment records have been obtained, as well as post-service VA treatment records identified by the Veteran. The Veteran had VA audiological examinations in May 2011 and October 2015. When VA undertakes to provide a VA examination or obtain a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has been afforded adequate examinations. The claims file and treatment records were reviewed, the Veteran's history was taken, and complete examinations were conducted which provided audiological thresholds and speech discrimination scores. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). Furthermore, as noted, the Veteran was afforded a Board hearing in January 2014. The Veterans Law Judge and the Veteran's representative outlined the issues on appeal, and the Veteran and representative engaged in a colloquy as to substantiation of the claims, including identifying relevant types of evidence. Overall, the hearing was legally sufficient and the duty to assist has been met. 38 U.S.C.A. § 5103A (West 2014); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the relevant records, and has provided adequate examinations to the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that is being decided. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis of Claims Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Sensorineural hearing loss is a chronic diseases under 38 C.F.R. § 3.309(a); therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) applies to the claim for service connection for right ear hearing loss. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease, at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases, such as sensorineural hearing loss, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within a presumptive period, it must be shown, by acceptable medical or lay evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Right Ear Hearing Loss For the 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, 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 (2015); see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007) (specifically upholding the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes). The Court has held that "the threshold for normal hearing is from 0 to 20 dBs [decibels], and higher threshold levels indicate some degree of hearing loss." See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this case, there is no competent evidence of hearing loss in the right ear for VA purposes at any time during the appeal period. The relevant question at issue is whether the Veteran has a current hearing disability at present, as defined by 38 C.F.R. § 3.385, so as to meet the criteria for service connection for defective hearing. A September 2004 VA audiology report noted normal puretone sensitivity for the right ear. The Veteran had a VA audiological examination in May 2011 and October 2015, and the findings of that examinations did not show hearing loss for VA compensation purposes. 38 C.F.R. § 3.385. Although the October 2015 audiological examination reflects a diagnosis of sensorineural hearing loss of the right ear, the hearing loss is not considered disabling for VA purposes. Thus, the findings do not satisfy the criteria for a hearing loss disability for VA purposes. 38 C.F.R. § 3.385. Given the lack of competent evidence showing that the Veteran has a current right ear hearing loss disability, as defined in 38 C.F.R. § 3.385, the claim for service connection for right ear hearing loss must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). ORDER Service connection for right ear hearing loss is denied. REMAND The Veteran seeks service connection for neuropathy of the lower extremities. The Veteran's military occupation was refueling specialist. He asserts that his lower extremity neuropathy is related to exposure to benzene additives in jet fuel. The Veteran had active duty service from March 1971 to March 1997. A March 1990 occupational health examination in the service treatment records noted benzene exposure. A private treatment record dated in October 2008 reflects that a neurologist diagnosed unspecified polyneuropathy. The record noted that refueling jets was associated with polyneuropathies. The Veteran was diagnosed with peripheral neuropathy of both feet, secondary to military exposure to benzene. The Veteran had a VA examination in December 2015. The examiner opined that idiopathic neuropathy of the left and right lower extremities did not have its onset during active duty or within one year of separation from service. The examiner opined that idiopathic neuropathy is not related to an in-service event or injury and is not due to a service-connected disability. The examination did not address the relationship between in-service benzene exposure and left and right lower extremity neuropathy. In light of the Veteran's contentions and his documented exposure to fuel and benzene, a remand is necessary to obtain an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should return the case to the December 2015 VA examiner for a supplemental opinion on the etiology of the Veteran's idiopathic neuropathy of the lower extremities. If the December 2015 examiner is unavailable, the opinion should be provided by a similarly qualified examiner. The examiner should provide an opinion as to whether it is at least as likely as not that idiopathic neuropathy of the lower extremities is related to service, including the Veteran's occupation as a refueling specialist and documented benzene exposure in service. The examiner's attention is referred to a 1990 Occupational Health report in the service treatment records, which noted benzene exposure. The examiner should provide a detailed rationale for the opinion. If an opinion cannot be provided without resorting to speculation, the examiner should explain why it is not possible to provide an opinion. 2. After the requested development has been completed, the AMC/RO should readjudicate the claims based on all the evidence of record. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) 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 2014). ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs