Citation Nr: 1800498 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-03 229A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremity. 5. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremity. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had honorable active duty service from May 1969 to May 1971. He is in receipt of three citations that denote his participation in combat, a Purple Heart, a Combat Infantryman Badge, and a Bronze Star Medal with V device. The Veteran also had service in the Army National Guard for the State of Virginia between September 1982 and July 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife presented testimony at a personal hearing before the undersigned Veterans Law Judge in December 2016. A transcript is of record. Since the Agency of Original Jurisdiction (AOJ) last considered the appeal, the Veteran submitted additional evidence. As the Veteran did not request in writing that the AOJ initially review the evidence, initial review of the evidence by the Board is appropriate. See 38 U.S.C. § 7105 (e) (2012). FINDINGS OF FACT 1. Bilateral hearing loss disability was not shown in service or to a compensable degree within one year of the Veteran's discharge from service, and the most probative evidence indicates his current hearing loss is not related to his military service, to included conceded in-service exposure to acoustic trauma. 2. Resolving all doubt in the Veteran's favor, the evidence is in equipoise as to whether his tinnitus arose in service and has continued since. 3. The RO has verified the Veteran was exposed to stressful events during his Vietnam service and an Axis I diagnosis of PTSD has been provided by a VA Chief of Mental Health Services based on that service. 4. The neuropathy affecting both of the Veteran's feet has been linked to his service-connected diabetes. 5. The neuropathy affecting both of the Veteran's arms has been linked to cervical spondylosis, which is not a service-connected disability. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The requirements for establishing service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 3. The requirements for establishing service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (f) (2017). 4. The requirements for establishing service connection for peripheral neuropathy of the bilateral lower extremity have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). 5. The requirements for establishing service connection for peripheral neuropathy of the bilateral upper extremity have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for bilateral hearing loss, tinnitus, PTSD, and peripheral neuropathy of both lower and upper extremities. He essentially contends that he was exposed to acoustic trauma and stressful events during his combat service in Vietnam and that he developed peripheral neuropathy as a result of exposure to Agent Orange in Vietnam. The RO has conceded that the Veteran was exposed to acoustic trauma and has verified that he was exposed to stressful events during combat service given his receipt of a Purple Heart. In regards to the Veteran's claim for service connection for tinnitus, when a condition may be diagnosed by its unique and readily identifiable features, as is the case with tinnitus, the presence of the disorder is not a determination "medical in nature," and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 305 (2007). When a claim involves a diagnosis based on purely subjective complaints, the Board is within its province to weigh the Veteran's testimony and determine whether it supports a finding of service incurrence and continued symptoms since service. Id. If it does, such testimony is sufficient to establish service connection. Id. The Board acknowledges that a VA examiner provided a negative opinion on this issue in June 2010. However, in light of the positive and negative evidence of record regarding tinnitus, to specifically include the Veteran's competent reports of tinnitus that began in service and that has continued since then, the Board finds that the evidence is at least in equipoise regarding whether his current tinnitus was incurred in service. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). Accordingly, resolving all doubt in his favor, service connection is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102 (2017). In regards to the Veteran's claim for service connection for PTSD, VA treatment records indicate that the Chief of Mental Health Services at the Daytona Beach Outpatient Clinic provided an Axis I diagnosis of PTSD in July 2010 based on the Veteran's service in Vietnam. Given that the RO has verified the Veteran was exposed to stressful events during his Vietnam service and he has been diagnosed with PTSD on the basis of such service, he meets all three criteria for service connection under 38 C.F.R. § 3.304 (f) and the claim is granted. In regards to the claims for service connection for peripheral neuropathy of the bilateral lower and upper extremity, the Veteran had service in Vietnam between October 1969 and July 1970 and is presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307 (a) (6) (2017). Service connection is not warranted on a presumptive basis for the neuropathy affecting the Veteran's lower and upper extremities because the evidence does not show, and the Veteran does not suggest, that it manifested to a degree of 10 percent or more within a year of the last date of exposure to herbicides, or within one year following his discharge from service. See 38 C.F.R. § 3.309 (e) (2017). Service connection is also not warranted on a direct basis for the neuropathy of arms diagnosed in a September 2010 VA treatment record because at the time of that diagnosis, it was noted that cervical arthritis/stenosis needed to be ruled out and subsequent x-ray contained an impression of mild cervical spondylosis, with osteophytic narrowing of the right neural foramina at C4-5 being the predominant feature. As such, the bilateral upper extremity neuropathy has been linked to cervical spondylosis, which is not a service-connected disability. Service connection, however, is warranted for peripheral neuropathy of the bilateral lower extremity on a secondary basis since the neuropathy affecting both the Veteran's feet diagnosed in June 2016 has been linked to his service-connected diabetes. See 38 C.F.R. § 3.310 (2017). In regards to the claim for service connection for bilateral hearing loss, although the Veteran has been diagnosed with a hearing loss disability and his exposure to acoustic trauma during service has been conceded, the first indication that the Veteran met the criteria for bilateral hearing loss found at 38 C.F.R. § 3.385 was in June 2010, during audiological testing conducted during the VA examination. As there is no competent evidence that the Veteran met the criteria for bilateral hearing loss found at 38 C.F.R. § 3.385 in service or within one year following the Veteran's discharge from service, competent evidence linking the current condition with service is required to establish service connection. No such evidence exists in this case. The June 2010 VA examiner provided an opinion that it is less likely than not that the Veteran's bilateral hearing loss is due to his in-service noise exposure from combat during military service. This opinion was based on the fact that although the Veteran exhibited low frequency hearing loss at the time of his March 1971 separation audiogram (which the Board again notes does not meet the criteria for bilateral hearing loss found at 38 C.F.R. § 3.385), that finding is inconsistent with noise induced hearing loss and was not evident at the time of the current examination because the Veteran's hearing was within normal limits bilaterally at the frequencies showing hearing loss on his separation examination. The examiner also explained that the Veteran's hearing was within normal limits in the high frequencies on his separation examination and that there was no evidence of permanent threshold shift or noise induced hearing loss pattern at separation. The examiner cited a September 2005 Institute of Medicine Report on noise exposure in the military, which concluded that based on current knowledge, noise induced hearing loss occurs immediately and that there is no scientific support for delayed onset noise induced hearing loss weeks, months, or years after the exposure event. Overall, for all these reasons, it was the examiner's opinion that the Veteran's hearing loss is more likely due to other etiologies such as aging, hypertension, reserve duty noise exposure without hearing protection after active duty, usage of potentially ototoxic medication, and recreational noise exposure. This opinion, which stands uncontroverted in the record and which was based on a detailed rationale, is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). While the Veteran believes that his current bilateral hearing loss and neuropathy affecting the upper extremities are related to service, to include the conceded exposure to acoustic trauma and his presumed exposure to herbicides, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of bilateral hearing loss and neuropathy of the upper extremities are matters not capable of lay observation, and require medical expertise to determine. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current disabilities is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current bilateral hearing loss and neuropathy of the upper extremities is not competent medical evidence. The Board finds the opinion of the VA examiner regarding the etiology of his bilateral hearing loss and the VA treatment records linking his bilateral arm neuropathy to a nonservice-connected cervical spondylosis to be significantly more probative than the Veteran's lay assertions. In sum, the preponderance of the evidence is against the claims for service connection for bilateral hearing loss and peripheral neuropathy of the bilateral upper extremity. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. Service connection for PTSD is granted. Service connection for peripheral neuropathy of the bilateral lower extremity is granted. Service connection for peripheral neuropathy of the bilateral upper extremity is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs