Citation Nr: 1804290 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 09-30 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a disability manifested by back pain. 2. Entitlement to service connection for disability manifested by left leg pain, including as secondary to a disability manifested by back pain. 3. Entitlement to service connection for a disability manifested by cold symptoms, claimed as due to exposure to asbestos or herbicides (Agent Orange). 4. Entitlement to service connection for headaches, claimed as due to exposure to asbestos or herbicides (Agent Orange). 5. Entitlement to service connection for calcified granuloma, right upper lobe, claimed as due to exposure to asbestos. 6. Entitlement to service connection for left lower extremity radiculopathy, claimed as due to exposure herbicides (Agent Orange), including as secondary to a disability manifested by back pain. 7. Entitlement to service connection for diabetes, claimed as due to exposure to herbicides (Agent Orange). 8. Entitlement to service connection for a thyroid disorder, claimed as due to exposure to herbicides (Agent Orange). 9. Entitlement to an increased initial evaluation for bilateral hearing loss, which is currently rated as 20 percent disabling from January 3, 2008, 80 percent disabling from January 19, 2010, and 100 percent disabling from September 26, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service in December 1973 to July 1976. Also, he had subsequent service with the Texas Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 and a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the proceeding is of record. This case was previously before the Board in October 2015, where the matter was remanded for further development. In a May 2017 rating decision, on remand, the Agency of Original Jurisdiction (AOJ) increased the assigned disability rating for the Veteran's bilateral hearing loss to 80 percent, effective January 19, 2010, and then to 100 percent disabling, effective September 26, 2016. As the increased evaluation awarded by the RO did not represent a total grant of the benefits sought on appeal, the claim for increase, prior to September 26, 2016, remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Subsequently, however, the AOJ continued the denial of the Veteran's remaining claims on appeal, as reflected in a September 2017 Supplemental Statement of the Case (SSOC), and returned these claims to the Board for further review. The Board notes that there was substantial compliance with its October 2015 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. The Veteran's current back condition is not shown to have had its onset during service, or to be causally or etiologically related to any disease, injury, or incident in service, and did not manifest within one year of his discharge from service. 2. The competent medical evidence of record does not establish that the Veteran's current left leg pain was caused or aggravated by a service-connected disability. 3. The medical evidence of record does not establish that the Veteran's left lower extremity neuropathy was caused or aggravated by a service-connected disability. 4. The Veteran did not serve in the Republic of Vietnam during the Vietnam era and exposure to herbicides may not be presumed based on Vietnam service. 5. The Veteran's personnel records do not show that he was exposed to testing sites or storage sites for herbicides while stationed at Eglin Air force Base between December 1973 to July 1976, and the most probative evidence of record shows that he was not exposed to herbicides during active military service. 6. The competent medical evidence of record does not establish that the Veteran's claimed disability manifested by cold symptoms was caused or aggravated by his active military service, to include as due to alleged asbestos or herbicides exposure. 7. The competent medical evidence of record does not establish that the Veteran's headaches were caused or aggravated by his active military service, to include as due to alleged asbestos or herbicides exposure. 8. The competent medical evidence of record does not establish that the Veteran's claimed calcified granuloma, right upper lobe, was caused or aggravated by his active military service, to include as due to alleged asbestos exposure. 9. The competent medical evidence of record does not establish that the Veteran's left lower extremity radiculopathy was caused or aggravated by his active military service, to include as due to alleged herbicides exposure. 10. The competent medical evidence of record does not establish that the Veteran's diabetes was caused or aggravated by his active military service, to include as due to alleged herbicides exposure. 11. The competent medical evidence of record does not establish that the Veteran's thyroid disorder was caused or aggravated by his active military service, to include as due to alleged herbicides exposure. 12. Prior to January 19, 2010, the Veteran's bilateral hearing loss, at worst, was Level V in the right ear and Level VI in the left ear. 13. From January 19, 2010 to September 26, 2016, the Veteran's bilateral hearing loss, at worst, was Level IX in the right ear and Level XI in the left ear. 14. Since September 26, 2016, the Veteran's bilateral hearing loss, at worst, has been Level XI in the right ear and Level XI in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for a disability manifested by left leg pain, to include as secondary to a back condition, have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). 3. The criteria for service connection for a disability manifested by cold symptoms, claimed as due to exposure to asbestos or herbicides, have not been met. 38 U.S.C. §§ 1110, 1113, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304 (2017). 4. The criteria for service connection for headaches, claimed as due to exposure to asbestos or herbicides, have not been met. 38 U.S.C. §§ 1110, 1113, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 5. The criteria for service connection for calcified granuloma, right upper lobe, claimed as due to exposure to asbestos, have not been met. 38 U.S.C. §§ 1110, 1113, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307 (2017). 6. The criteria for service connection for left lower extremity radiculopathy, claimed as due to exposure herbicides, including as secondary to a back condition, have not been met. 38 U.S.C. §§ 1110, 1113, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307 (2017). 7. The criteria for service connection for diabetes, claimed as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1110, 1113, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 8. The criteria for service connection for a thyroid disorder, claimed as due to exposure to herbicides, have not been met. 38 U.S.C. §§ 1110, 1113, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 9. The criteria for an initial evaluation for bilateral hearing loss higher than 20 percent prior to January 19, 2010, 80 percent prior to September 26, 2016, and 100 percent since, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.85, 4.86, DC 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For increased rating claims, 38 U.S.C. § 5103(a) requires, at a minimum, the Secretary to: (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life"). Once service connection is granted, Courts have held that the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See 38 U.S.C. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nonetheless, the Board notes that in a March 2008 letter, the Veteran was informed of what evidence was required to substantiate his claims, and of his and VA's respective responsibilities in obtaining evidence. Additionally, this letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Veteran was afforded ample notice of the applicable law and requirements for substantiating his claims in the August 2009 and September 2011 SOCs, as well in additional SSOCs. He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate. Thus, the Board finds that VA's duty to notify is satisfied. Regarding the duty to assist, the Board notes that the claims file contains relevant post-service medical records and the Veteran's own written contentions. Neither the Veteran nor the Veteran's representative has identified, nor does the record otherwise indicate, any other evidence relevant to his claim that has not been obtained. Furthermore, the Veteran was afforded VA examinations and opinions were provided in support of his claim. Upon review of the medical evidence, the Board concludes that these examination reports, collectively, are adequate for the purpose of rendering a decision in this case. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary. Id. When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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 is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. III. Service Connection for Back Condition The Veteran contends that his current back condition is etiologically related to a complaint of back pain made during service. Having carefully considered this claim, in light of the evidence of record and the applicable law, the Board concludes that the most probative evidence is against the Veteran's service connection claim. The Board will begin by addressing direct service connection. As noted above, the first element of direct service connection requires medical evidence of a current disability. In this case, the Veteran has a current diagnosis of lumbar spine degenerative arthritis. See April 2017 VA Examination. Therefore, the Veteran has satisfied the first element of service connection. As previously mentioned, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease. Initially, although arthritis is considered to be a "chronic disease" under 38 C.F.R. § 3.309(a), to be presumed to have been incurred during service, such chronic disease must manifest to a compensable degree within one year of separation from active duty. In this case, the first mention of a back condition in the medical evidence of record is a January 2001 treatment record reflecting that the Veteran reported chronic neck pain and low back pain stemming from a motor vehicle accident in September 2000, which is well beyond the permissible presumptive period. Similarly, diagnostic testing in July 2001 revealed an unremarkable lumbar spine and disc bulging at C4-5 and C5-6 in the cervical spine, which is likewise well beyond the permissible presumptive period. Therefore, service connection on a presumptive basis, for lumbar spine degenerative arthritis, is not warranted. See Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). An STR dated May 13, 1974 reflects that the Veteran complained of back pain over the last few days. There was no history of trauma noted. After physical evaluation, medical personnel provided a diagnosis of a lumbar spine strain. This is the only complaint of symptoms related to a back condition that is documented in the Veteran's STRs. Moreover, the Veteran explicitly denied having had, or presently having, any recurrent back pain during his June 1976 separation examination, as well as at his March 1978 Army National Guard enlistment examination. In fact, the earliest post-service medical records demonstrating that the Veteran complained of, or was treated for, a back was in 2000/2001, which is many years after his separation from active duty. See January 2001 VA Medical Record (indicating that Veteran reported chronic neck pain following a recent motor vehicle accident). This prolonged period without complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Nevertheless, during the pendency of this appeal, the Veteran has asserted that he experienced back pain symptoms during his active military service, which have continued since his separation from service. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997). In this case, the Veteran's assertions that he has continuously experienced pain in his back since his service are considered competent evidence. Layno, 6 Vet. App. at 469-70. However, after weighing the Veteran's assertions of continuity against the absence of in-service treatment records detailing a chronic disability, his explicit denial of back problems on medical history, and the prolonged period before the first documented post-service treatment and diagnosis, the Board finds that service connection for a chronic back disability is not warranted on the basis of a continuity of symptomatology since active service. 38 C.F.R. § 3.303 (b). Even though presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Regarding direct incurrence, as noted above, a May 1974 STR reflects that the Veteran was diagnosed with a lumbar spine strain. However, there is no other mention of any complaints of, or treatment for, a back condition within the remaining STRs. Following the Veteran's separation, the earliest documented evidence of any complaints or treatment for any back condition was over 25 years after his separation from service. The fact that a chronic condition was not shown for such a prolonged period after his period of active service weighs against a claim that it was related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (explaining that the Board may consider "evidence of a prolonged period without medical complaint," along with other factors in resolving a claim). The Veteran was afforded a VA examination in June 2008. The examiner noted that there is evidence of a back injury in 1974, but concluded that this "apparently resolved as there is no further treatment and [the Veteran] denied a history of chronic back pain on RAD exam." The Veteran was afforded another VA examination in November 2011. The Veteran stated that he fell from a scaffold in 1974 and was conservatively treated for muscle spasm. He further indicated that he also served in the reserves, where he had another fall and sustained a back strain. The Veteran also reported that he started to have low back pain in 2001 and eventually had "8 surgeries" for his back. Following physical evaluation, the examiner concluded that it is less likely as not that the Veteran's current back condition was caused by or a progression of the condition he was treated for during service. In support of this determination, the examiner indicated that there is a lack of chronological evidence of a lumbar condition linked to service and noted that there is no evidence of any radiological findings in x-rays following service. Specifically, the examiner addressed the lack of any evidence in the Veteran's service treatment records identifying chronic low back pain. The examiner further stated that the Veteran initially reported having back pain in 2001, which had been linked to a prior motor vehicle accident in 2000. In its October 2015 decision, the Board found the November 2011 VA examiner's medical opinion to be inadequate, because the examiner did not address the Veteran's lay statements asserting that that he has had chronic and continuous back pain from the time he injured his back during service to the present. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Also, at the time, the claims file contained private medical records from the Veteran's treating physician, Dr. M.M., who indicated in February 2009 that it was his opinion that it was "at least as likely as not that the injury in 1974 was the onset of the current back condition," and in July 2015 that the Veteran had a "lumbar spine injury with radiculopathy more likely than not from Air Force injury and ongoing severe pain." Although these opinions did not contain any rationale, and consequently cannot form the basis for a grant of service connection, they too must be considered. Therefore, the Board remanded the claim to afford the Veteran a new VA compensation examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was most recently afforded another VA compensation examination in April 2017. The examiner opined that it is less likely than not that the currently diagnosed back conditions were incurred in or caused by the veteran's activities or duties that occurred during his active duty service between 1973 to 1976. In support of this determination, the examiner indicated that the chronology of events suggest that his current conditions involving his back were the result of an injury caused by a motor vehicle accident which occurred after the Veteran's separation from the military. Specifically, the examiner first noted how there were no specific back pain reported at separation. The examiner also indicated that the Veteran had a motor vehicle accident in 2000, where there were subsequent complaints of back and neck pain after the accident and throughout the following years. The Board finds that the April 2017 VA compensation examination was thorough and adequate and provided a sound basis upon which to base a decision with regard to the Veteran's service connection claim. See Barr v. Nicholson, 21 Vet. App 303, 311 (2007). Additionally, the April 2017 VA medical opinion is highly probative, as it was prepared by a medical professional who reviewed the Veteran's pertinent medical history, conducted an in-person evaluation, and clearly assessed the nature of his back condition. Moreover, the examiner's opinions are based on reliable principles and are supported by other evidence of record. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that most of the probative value of an opinion comes from the discussion of its underlying reasoning or rationale). Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current back condition is etiologically related to his active military service, to include the condition he was treated for during service. Although he has maintained that his current condition is related to service, the most probative evidence indicates otherwise. In this case, the Board is assigning more probative weight to the April 2017 VA medical opinion than to the Veteran's private physician's statement for several reasons. First, the April 2017 VA examiner provided a specific rationale based on objective evidence from a physical examination and discussion of the pertinent medical evidence of record, including prior diagnostic testing and examinations. On the other hand, Dr. M.M. did not indicate whether the Veteran's STRs were reviewed and did not provide any rationale as to how a back strain with no reported problems during service could cause spinal stenosis almost 30 years later. Moreover, the April 2017 VA examiner not only addressed the Veteran's statements, but indicated that the chronology of events supported the current back conditions were more likely due to a post-service motor vehicle accident due to the competent evidence of record. Conversely, the private physician did not discuss the Veteran's pertinent medical history, nor did he even mention any relevant post-service trauma sustained in a MVA in his medical statement. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (upholding Board determination that VA examination reports were more probative because they were more thorough and detailed, they discussed the conflicting opinions, and the examiners had access to the claims file); see also Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (finding that the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence). The Board recognizes that the Veteran is competent to report symptoms that he perceives through his own senses, but these reports must be weighed against the medical evidence of record. See Layno v. Brown, 6 Vet. App. at 469. While the Veteran has attempted to establish a nexus through his own lay assertions, he is not competent to offer an opinion as to the etiology of his back condition due to the medical complexity of the matter involved. Again, the Board notes that arthritis requires specialized training for a determination as to diagnosis and causation and, consequently, falls outside the realm of common knowledge of a layperson susceptible to lay opinions on etiology. Consequently, the Veteran is not competent to render a nexus opinion or attempt to present lay assertions to establish a nexus between his current diagnosis and his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As the preponderance of the evidence is against a finding that the Veteran's back condition is etiologically related to his active military service, the benefit of the doubt rule is not applicable here. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). IV. Secondary Service Connection Claims As noted above, service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service, if it is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. For these claims, establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In this case, the Veteran is seeking service connection for a disability manifested by left leg pain and left lower extremity neuropathy, which he has contended his leg pain is attributable to his current back condition and his neuropathy is attributable in part to his back condition. The Veteran has not asserted, nor does the record reflect that either his leg pain or his left lower extremity neuropathy first manifested during service or was related to his service. It has only been claimed that these disabilities are secondary to his back condition. Accordingly, since the Veteran does not contend that these disabilities are directly related to service and because the record similarly does not reasonably raise the theory of direct service connection, the Board will address only whether the Veteran is entitled to service connection for these disabilities on a secondary basis. See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008) (concluding "that the Board is not required sua sponte to raise and reject 'all possible' theories of entitlement in order to render a valid opinion" and "commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir.2009) (stating that "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"). The findings set forth earlier in this decision reflect that the Veteran was not entitled to service connection for a back condition. As service connection has not been established in this case, there is no factual or legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service connected. See 38 C.F.R. § 3.310. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). V. Service Connection Claims Based on Asbestos Exposure As stated above, service connection may be presumed for certain "chronic diseases," which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. 3.307. With regard to asbestos-related disorders, the VA Adjudication Procedure Manual, M21-1 (M21-1), provides guidance on how to adjudicate claims based on exposure to some environmental hazards, as well as specific guidance in adjudicating asbestos-related claims. M21-1, Part IV.ii.1.I.3 (November 19, 2015). However, there is no VA regulation that allows service connection on a presumptive basis for disorders resulting from exposure to environmental chemicals. 38 C.F.R. §§ 3.307, 3.309. Rather, service connection based on chemical exposure may be established only if a current disability is shown by the competent medical evidence to be related to chemical exposure during service. Moreover, the M21-1 provides the following non-exclusive list of occupations that have higher incidents of asbestos exposure: mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, and manufacture and installation of roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. See M21-1, part IV, Subpart ii, Chapter 2, Section C, 9(f). In this case, the Veteran is seeking service connection for a disability manifested by cold symptoms, headaches, and calcified granuloma of the right upper lobe, which he contends all are due, at least in part, to exposure to asbestos during service. The Veteran has not asserted, nor does the record reflect that these claimed conditions either first manifested during service or are otherwise etiologically related to his active military service. Instead, the Veteran claims that these disabilities are due to an exposure to asbestos during service. Specifically, the Veteran alleges that he was exposed to asbestos on two occasions. During Hurricane Eloise, he claims the roof of the hangar he was occupying was ripped off and he was showered with asbestos insulation on September 13-14, 1975. Additionally, he claims that he occasionally performed work on automobile breaks, as required by his MOS, thus creating dust that he constantly breathed in, which caused his current disabilities. In May 2017, VA issued a Formal Finding indicating a lack of information necessary to corroborate or verify the claimed events and situations regarding the Veteran's claimed asbestos exposure. In addressing the Veteran's first contention of asbestos exposure during Hurricane Eloise in September 1975, VA noted that his military personnel records do not reveal any indication that he was assigned to an asbestos rip out team, nor do they identify an event where he claimed asbestos exposure occurred. Moreover, VA indicated that, after review of the Veteran's submitted evidence regarding Hurricane Eloise and information from NOAA and Elgin AFB, a damage assessment of the buildings or base damage is not available for the dates of September 12 to September 15, 1975. Lastly, it was noted that while the Veteran alleged that asbestos insulation fell on him and others, he did not provide any buddy statements that claim or make the same allegation. Next, VA indicated that the Veteran's assigned MOS during service was 60350 Vehicle Operator/Dispatcher and discussed several occupational survey assessments that showed Vehicle Operators/Dispatchers performed the primary duty of day-to-day driving. While routine maintenance was identified as being part of the duties-described as "generalized maintenance normally associated to common tasks you would find in a check list prior to operation or inspection-the tasks alleged by the Veteran were considered to be "above and beyond the norm." These assessments indicated that major repair would have been completed by qualified mechanics, rather than the "VIP driver." However, VA further indicated that, even assuming the Veteran did complete some work on brake pads, he would have had to work on breaks constantly to have any possibility of being exposed. As a result, his claim of in-frequent or one-time basis does not corroborate his claim of exposure. In light of the above, the Board finds that service connection is not warranted based on asbestos exposure. Even assuming, arguendo, that the Veteran was exposed to asbestos during service, the Board notes that there is no presumption that asbestos exposure automatically establishes service connection; rather, there still needs to be a nexus between a disability and in-service asbestos exposure, and, here, there is no competent medical evidence that asbestos exposure is connected to the Veteran's currently claimed disabilities. Thus, the evidence weighs against asbestos exposure as a basis for service connection of the Veteran's claimed disabilities, including a disability manifested by cold symptoms, headaches, and calcified granuloma. Significantly, the Board further notes that the Veteran has not presented or identified any contrary, competent and persuasive medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Therefore, as the Veteran was not exposed to asbestos during service, and there is no competent medical evidence supporting his service connection claims, the Board finds that the most persuasive evidence of record shows that the Veteran's claimed disabilities, including a disability manifested by cold symptoms, headaches, and calcified granuloma, are not etiologically related to service or any incident during service. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). VI. Service Connection Claims Based on Herbicides Exposure As stated above, service connection may be presumed for certain "chronic diseases," which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. § 1101, 1112, 1113, 1137; 38 C.F.R. 3.307. VA has established a presumption of service connection applicable to veterans who are either presumed to have been exposed to herbicide agents, such as Agent Orange, or who are shown to have been actually exposed to herbicide agents during service. In order for service connection to be established by this presumption, there must be a diagnosis of an herbicide-presumptive disease and there must be evidence to substantiate actual exposure to an herbicide agent. In this case, the Veteran is seeking service connection for a disability manifested by cold symptoms, headaches, left lower extremity peripheral neuropathy, diabetes, and a thyroid disorder, which he contends all are due, at least in part, to his exposure to herbicides during service. The Veteran has not asserted, nor does the record reflect that these claimed conditions first manifested during service or are otherwise related to service on a direct basis. Instead, the Veteran claims that these disabilities are due to his alleged in-service herbicide exposure. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Initially, the Board notes that the Veteran did not serve in the Republic of Vietnam during the Vietnam era nor does the he assert that he was exposed to herbicides in the Republic of Vietnam. Instead, he claims that herbicides were stored at Eglin AFB during the period he was stationed there. Specifically, the Veteran claims that his exposure to herbicides occurred between 1973 to 1976 at Eglin, where chemical filled drums were located at the end of a runway. He claims that he was ordered to chase deer away from incoming low flying planes along this runway. In September 2016, the AOJ issued a formal finding, which found the evidence fails to confirm that the Veteran was exposed to tactical herbicides while serving at Eglin AFB. Response from the Department of Defense (DOD) indicates that historical records document trial tests for evaluation of herbicide spray systems and techniques were conducted at Eglin AFB during November 1952 and December 1952, and from June 11, 1968 through September 12, 1968. The Veteran's service personnel records does not show that he was assigned to Eglin AFB during a period in time when the DOD reports Agent Orange was used or stored at the base. Thus, the Board finds that the Veteran's statements alone cannot be used to establish exposure to herbicides during service. In light of the foregoing, the Board finds that the evidence of record does not support the Veteran's contention that he was exposed to herbicides in service and, therefore, he is not entitled to service connection for his claimed disabilities on a presumptive basis based on exposure to herbicides pursuant to the provisions of 38 U.S.C. § 1116 and 38 C.F.R. §§ 3.307, 3.309(e) based on herbicide exposure. Moreover, no medical professional has ever suggested that the Veteran's claimed disabilities, to include a disability manifested by cold symptoms, headaches, left lower extremity peripheral neuropathy, diabetes, and a thyroid disorder, are related to his military service, and neither the Veteran nor his representative have presented, identified, or even alluded to the existence of any such medical evidence or opinion. In short, there is no competent evidence to support the claim. To the extent the Veteran relates these disabilities to service (to include herbicide exposure), the Board finds that such is not competent evidence. The matter of a nexus between a current disability and service is (in the absence of continuity of symptomatology which the Veteran is not alleging and the record does not reasonably raise) a question that is beyond lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted on a direct basis. Hickson v. West, 12 Vet. App. 247, 253 (1999). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). VII. Increased Rating for Hearing Loss When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. If the evidence for versus against a claim is in equipoise, then the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4. These percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to him. The Veteran's service-connected bilateral hearing loss is currently rated as 20 percent disabling from January 3, 2008, 80 percent from January 19, 2010, and 100 percent since September 26, 2016 under 38 C.F.R. § 4.85. Disability ratings for hearing loss are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometry tests. See 38 C.F.R. § 4.85. "Puretone threshold average" is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. 38 C.F.R. § 4.85 (d). To evaluate the degree of disability for service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "VI" and the poorer ear has a numeric designation Level of "VII," then the percentage evaluation is 30 percent. Disability evaluations for hearing loss are determined by a mechanical application of the criteria contained in Table VI and Table VII. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Veteran was afforded a VA audiological examination in June 2008. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 30 80 65 LEFT 35 30 60 85 95 The puretone thresholds average was 50 decibels in the right ear and 67.5 decibels in the left ear. Speech audiometry revealed speech recognition ability of 72 percent in the right ear and 68 percent in the left ear. The hearing impairment levels, based on the June 2008 audiometric findings, correspond to Level V in the right ear and Level VI in the left ear, under Table VI. 38 C.F.R. § 4.85. Intersecting Levels V and VI under Table VII results in a 20 percent rating. 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII. The Board also has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. However, since the audiological report fails to demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more, or that the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear, an evaluation for exceptional patterns of hearing impairment is not warranted. The Veteran was afforded another VA audiological examination in January 2010. The Veteran's puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 60 55 85 75 LEFT 70 65 85 100 105 The puretone thresholds average was 68.75 decibels in the right ear and 88.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 40 percent in the right ear and 32 percent in the left ear. The hearing impairment levels, based on the January 2010 audiometric findings, correspond to Level IX in the right ear and Level XI in the left ear, under Table VI. 38 C.F.R. § 4.85. Intersecting Levels IX and XI under Table VII results in an 80 percent rating. 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII. The Board also has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. While the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the findings in the January 2010 audiological report indicate that the Veteran will result in a higher disability rating using the Roman numeral designation for hearing impairment from Table VI rather than Table VIa. The Veteran was afforded a VA audiological examination in November 2011, however the examiner indicated that the Veteran could not be tested because the "Veteran is very inconsistent in responding" and the examiner was "unable to report any results for AC or BC stim, unmasked or masked." In this case, the Board finds that any test results from this examination are not valid for rating purposes. More recently, the Veteran underwent another VA audiological examination in September 2016. His puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 65 70 80 80 LEFT 60 70 85 100 105 The puretone thresholds average was 73.75 decibels in the right ear and 90 decibels in the left ear. Speech audiometry revealed speech recognition ability of 10 percent in the right ear and 10 percent in the left ear. The hearing impairment levels, based on the January 2016 audiometric findings, correspond to Level XI in the right ear and Level XI in the left ear, under Table VI. 38 C.F.R. § 4.85. Intersecting Levels XI and XI under Table VII results in a 100 percent disability rating. 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VII. The audiometric evaluations discussed above do not reveal results warranting an evaluation higher than what is currently assigned. Review of the medical evidence of records reveals no other audiometric testing that would support a higher rating at any point during the period on appeal. Thus, an evaluation for bilateral hearing loss higher than 20 percent from January 3, 2008, 80 percent from January 19, 2010, and 100 percent since September 26, 2016, under 38 C.F.R. § 4.85, is denied. VIII. Extra-schedular Consideration for Hearing Loss The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. The rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the VHA in developing criteria that contemplated situations in which a Veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. Through clinical studies of veterans with hearing loss, VHA found that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (Apr. 12, 1994). The Board acknowledges the Veteran's reported complaints of his bilateral hearing loss disability. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. With this in mind the Board has considered the Veteran's statements with regard to his hearing loss disability, as noted in his submitted statements, examination records and his August 2015 hearing testimony before the Board. For example, he has had complaints of difficulty hearing speech at a normal, conversational level and relies heavily on visual cues to see the talker's lips. Also, he is unable to hear most environmental sounds, such as sirens. He does not currently wear hearing aids. See January 2010 examination report; see also September 2016 examination report (indicating that the Veteran may benefit from cochlear implant and/or hearing aids). However, he is service connected for bilateral hearing loss and hearing loss, by its very nature, involves a difficulty with hearing acuity. He has reported having difficulty with hearing acuity. Thus, his reported symptoms are the very symptoms considered in the rating criteria and do not represent an exceptional or unusual disability picture. Consider also there recently was a panel decision issued on December 13, 2017, by the United States Court of Appeals for Veterans Claims (CAVC) affirming a December 2015 Board decision that had denied a compensable schedular rating for bilateral hearing loss, as well as referral for a rating based on extra-schedular consideration under 38 C.F.R. § 4.16. See Rossy v. Shulkin, No. 16-0720 (December 13, 2017). That appeal to the Court was filed after the Court decided Doucette v. Shulkin, 28 Vet. App. 366 (2017), which had affirmed a Board decision denying extra-schedular referral when only the functional effects alleged were aspects of hearing loss. The Court concluded that Doucette directed the outcome of the appeal in Rossy as well. In Doucette, the Court addressed how to conduct an extra-schedular analysis-specifically, the first Thun inquiry-in the contest of a hearing loss claim. The Court held that the rating criteria for §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts. While leaving open the possibility that extra-schedular consideration for hearing loss might be warranted by other symptoms or functional effects associated with that disability, the Court further held that extra-schedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record. The Court saw no basis to distinguish that appeal from Doucette; as in this case, the only hearing loss problem alleged by the Appellant was difficulty understanding conversations, particularly in noisy or crowded circumstances. Absent other factors, the Court found that this sort of complaint is squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria. The Court found that the Appellant failed to demonstrate any error regarding his bilateral hearing loss. The Court affirmed the Board's decision. Recognizing all of this, the threshold element for extra-schedular consideration is not met and any further consideration of governing norms or referral to the appropriate VA officials for extra-schedular consideration is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). Lastly, the Veteran has not alleged, and the evidence does not otherwise show, any symptoms indicative of an unusual or unique disability picture not contemplated by the rating criteria; thus, the schedular criteria are wholly adequate. As a result, extra-schedular referral is not required. 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to service connection for a back condition is denied. Entitlement to service connection for a disability manifested by left leg pain, to include as secondary to a back condition, is denied. Entitlement to service connection for a disability manifested by cold symptoms, claimed as due to exposure to asbestos or herbicides, is denied. Entitlement to service connection for headaches, claimed as due to exposure to asbestos or herbicides, is denied. Entitlement to service connection for calcified granuloma, right upper lobe, claimed as due to exposure to asbestos, is denied. Entitlement to service connection for left lower extremity radiculopathy, claimed as due to exposure herbicides, including as secondary to a back condition, is denied. Entitlement to service connection for diabetes, claimed as due to exposure to herbicides, is denied. Entitlement to service connection for a thyroid disorder, claimed as due to exposure to herbicides, is denied. Entitlement to an initial evaluation higher than 20 percent prior to January 19, 2010, 80 percent prior to September 26, 2016, and 100 percent thereafter, is denied. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs