Citation Nr: 18139810 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 12-08 159 DATE: October 1, 2018 ORDER The Board of Veterans’ Appeals (Board) vacates that portion of the January 2018 Board decision denying service connection for a thoracolumbar spine disorder, a cervical spine, a left leg disorder, a right leg disorder, hearing loss of the right ear, obstructive sleep apnea (OSA), a blood platelet disorder, and a thyroid disorder. After a de novo review, entitlement to service connection for hearing loss of the right ear is denied. After a de novo review, entitlement to service connection for a blood platelet disorder is denied. REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a thoracolumbar spine disorder is remanded. Entitlement to service connection for a left leg disorder is remanded. Entitlement to service connection for a right leg disorder is remanded. Entitlement to service connection for OSA is remanded. Entitlement to service connection for a thyroid condition is remanded. FINDINGS OF FACT 1. In January 2018, the Board issued a decision denying the Veteran’s claims of service connection for a cervical spine disorder, a thoracolumbar spine disorder, a left leg disorder, a right leg disorder, hearing loss of the right ear, OSA, a blood platelet disorder and a thyroid disorder. 2. In conjunction with review of a May 2018 motion for reconsideration of the Board’s January 2018 decision, the Board discovered that it did not consider the provisions of 38 U.S.C. § 1154(b) with respect to the above noted claims. 3. The Veteran does not have hearing loss of the right ear for VA compensation purposes. 4. A medical nexus has not been established between a blood platelet disorder and an in-service incurrence. CONCLUSIONS OF LAW 1. The criteria for vacating the portion of the January 2018 Board decision denying service connection for a cervical spine disorder, a thoracolumbar spine disorder, a left leg disorder, a right leg disorder, hearing loss of the right ear, obstructive sleep apnea (OSA), a blood platelet disorder, and a thyroid disorder have been met. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.904 (2018). 2. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.385 (2018). 3. The criteria for entitlement to service connection for a blood platelet disorder have not been met. 38 U.S.C. §§ 1101, 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1970. This case comes to the Board on appeal of rating decisions of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2015, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. The case was remanded by the Board in February 2016 for further development of the evidence. This was accomplished and the case has been returned for further appellate consideration. The matter of entitlement to an increased rating for left ear hearing loss was included in the February 2016 Board remand, as the Veteran had disagreed with the rating awarded, but a Statement of the Case (SOC) had not been issued by the agency of original jurisdiction (AOJ). The Board instructed that the AOJ develop the matter for appellate review. While this was accomplished and the Veteran has submitted a substantive appeal, the matter is being separately developed by the AOJ pursuant to the Veteran’s request for a Board videoconference hearing. Therefore, it is not part of the current appeal. In January 2018, the Board the matters before the Board as well as the issues of entitlement to service connection for heart disease and hypertension. The issues of service connection for heart disease and hypertension were remanded for further development, and the Board denied all of the Veteran’s other claims on the merits. 1. Vacatur. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2018). In May 2018, the Veteran, through his representative, requested reconsideration of the Board’s January 2018 decision which denied the issues of entitlement to service connection for a cervical spine disorder, a thoracolumbar spine, a left leg disorder, a right leg disorder, hearing loss of the right ear, OSA, a blood platelet disorder, and a thyroid disorder, asserting various deficiencies in the decision. Based on the arguments presented by the Veteran’s representative, the Board vacates that portion of the January 2018 Board decision denying the Veteran’s claims for service connection for a cervical spine disorder, a thoracolumbar spine, a left leg disorder, a right leg disorder, hearing loss of the right ear, OSA, a blood platelet disorder, and a thyroid disorder. Therefore, these issues must be adjudicated de novo. The issues of service connection for right ear hearing loss and a blood platelet disorder are the subject of de novo review herein. The remaining issues are remanded to the AOJ for further development. In January 2018, the Board remanded the issues of entitlement to service connection for heart disease and hypertension. The remand disposition of these issues is not and shall not be disturbed. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection can also be established through application of statutory presumptions, including for chronic diseases, like arthritis and organic diseases of the nervous system, that become manifest to a compensable degree within one year of separation of service or when there is continuity of symptomology since separation of service. 38 C.F.R. §§ 3.307, 3.309. To establish entitlement to service-connected compensation benefits, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154(b). However, the combat presumption cannot substitute for competent evidence linking a current disorder to service. While 38 U.S.C. § 1154(b) relaxes the evidentiary burden for a combat veteran, it is important to note to what section 1154(b) pertains. “Section 1154(b) deals with the question whether a particular disease or injury was incurred or aggravated in service - that is, what happened then - not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required.” Caluza v. Brown, 7 Vet. App. 498, 507 (1995). 2. Entitlement to service connection for right ear hearing loss. The Veteran contends that service connection is warranted for right ear hearing loss as a result of his combat service. It is noted that the Veteran has been service connected for left ear hearing loss and tinnitus as a result of acoustic trauma. Service connection for impaired hearing shall not be established unless the hearing status meets pure tone and speech recognition criteria. Hearing status will be considered to be a disability when the auditory thresholds in any of the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 hertz is 40 decibels or greater; thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores used in the Maryland CNC tests are less than 94 percent. 38 C.F.R. § 3.385. “Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Hensley v. Brown, 5 Vet. App. 155, 157 (1993). On examination at entry into active duty, pure tone audiometry thresholds, with conversion to current International Standards Organization-American National Standards Institute values (in parentheses), were noted to be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) -10 (0) N/A 10 (-5) Service treatment records showed no complaint or manifestation of hearing loss. On examination for separation from service, the Veteran did not undergo an audiometric evaluation. Testing of hearing by whispered voice was 15/15 in the right ear. Clinical evaluations of the ears were normal. An audiometric examination was conducted by VA in October 2010. At that time air conduction threshold levels were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 25 Speech recognition ability using the Maryland CNC word list was 96 percent correct in the right ear. The diagnosis was that the Veteran did not have hearing loss by VA standards. An examination was conducted for VA in October 2012. At that time, the examiner certified that bone conduction studies were better than air conduction studies for reflecting the Veteran’s hearing loss. Air conduction threshold levels in the right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 25 35 Bone conduction studies were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 20 25 30 Initial speech recognition in the right ear was 98 percent correct. The diagnosis was sensorineural hearing loss in the right ear at 6000 Hertz or higher. The examiner stated that, according to VA hearing loss requirements, the Veteran did not have hearing loss in the right ear. In a July 2015 statement, the Veteran’s private physician indicated that the Veteran had noise-induced hearing loss. Audiometric results were not included with this report. An examination was conducted by VA in June 2016. At that time, pure tone air conduction threshold levels in the right ear were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 15 20 30 Speech discrimination was 100 percent correct in the right ear. The diagnosis was sensorineural hearing loss in the right ear. The examiner stated that the Veteran’s test results were consistent with hearing sensitivity that was within normal limits in the right ear for VA rating purposes. The Veteran has undergone several audiometric evaluations in recent years. None, to date, has documented hearing loss of such severity to meet the VA criteria for hearing loss. As hearing loss that meets the VA criteria has not been demonstrated at any time during the appeal, the claim must be denied at this time. 38 C.F.R. § 3.385. The Board notes that in a May 2018 motion for reconsideration, the Veteran alleged that the Board’s reasoning was arbitrary and capricious. Is support of this contention, the Veteran offers no support other than the Board’s reasons and bases for denying service connection failed to take into consideration 38 U.S.C. § 1154(b). Given that the Board has included an analysis of 1154(b) below, the Board does not afford this argument any weight. The Board notes that § 1154(b) is applicable to this case. The Board accepts the Veteran’s assertions that he manifested right ear hearing loss as a result of his combat service, establishing inservice incurrence of the disorder. However, as noted earlier, application of § 1154(b) does not obviate the requirement for the demonstration of a current disability. The presence of a current disability or a disability during the pendency of the appeal is the cornerstone of a claim for service connection, and, without a diagnosis, the Veteran cannot prevail regardless of inservice incurrence of hearing loss. As discussed, audiometric examinations during the appeal period have all failed to demonstrate right ear hearing loss, as defined by 38 C.F.R. § 3.385. Without a current disability, a basis is not presented for a grant of service connection. The application of § 1154(b) does not change the outcome of this issue. The May 2018 motion for reconsideration indicated that – when the Board afforded the June 2016 opinion more weight than the July 2015 opinion – the Board failed to apply the clear and convincing evidence standard. After reviewing the pertinent medical evidence of record, the Board finds, for the reasons previously described, that the presence of right ear hearing loss as a result of combat service is accepted. Nevertheless, as the Veteran does not have a right ear hearing loss for VA purposes, service connection may not be granted. The Board does not find that the Veteran has the medical expertise, training or experience to opine that he currently has a right ear hearing loss. The audiometric examinations of record unequivocally demonstrate that he does not. Finally, the May 2018 motion for reconsideration indicates that the Board did not adequately address an October 2017 response to a supplemental statement of the case (SSOC) issued in October 2017. The arguments essentially allege that the RO failed to substantially comply with the Board’s remand instructions. After reviewing the record, the Board finds that the RO has substantially complied with the Board’s previous remand instructions. The June 2016 examiner specifically found that the Veteran does not have a right ear hearing loss for VA purposes. Therefore, any further opinion regarding nexus is unnecessary and the Board will not discuss any further findings of the VA audiological examiner. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection hearing loss of the right ear. The evidence indicates that the Veteran does not have hearing loss of the right ear. Therefore, 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. As such, entitlement to service connection for hearing loss of the right ear is denied. 3. Entitlement to service connection for a blood platelet disorder. The Veteran contends that service connection is warranted for a blood platelet disorder. During testimony at the Board hearing in May 2015, he stated that he believed that this disorder, which he stated was first noted during the late 1980’s, was related to exposure to herbicides while he served in Vietnam. It is also alleged that its onset was during the Veteran’s combat service. Review of the Veteran’s service treatment records shows no complaint or manifestations of a blood platelet disorder while the Veteran was on active duty. Post service medical records include a statement of the Veteran’s private physician who noted that the Veteran was found to have low platelet counts in 1989 and on several tests thereafter. The physician indicated that this could have been a viral difficulty and that the Veteran had not had any subsequent difficulty. The physician did not make any diagnosis or opine that this was related to service. An examination was conducted by VA in June 2016. Following evaluation, the examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no evidence of elevated platelets or chronically elevated platelets on review of the available medical records. The examiner noted the private physician statement of low platelets in 1988 and 1989, but there was no evidence in the record confirming these findings and recent laboratory values showed normal platelets. Therefore, on present examination, there was no indication of a chronic condition resulting in low platelets. The examiner stated that the etiology of any low platelet disorder could not be postulated as there were no medical records that actually documented the disorder. The record does not include evidence that the Veteran had a blood platelet disorder during service or that he currently has such a disability. While it is noted that he did demonstrate the disorder in 1988 or 1989, the private physician who reported these laboratory findings did not render an opinion that it was related to service. Nor was such an opinion rendered by the VA physician who commented on the disorder. Further, the April 2010 service connection claim postdates by many years the single notation of a blood platelet disorder. The Veteran, as a lay person, is not competent to opine that he currently has a blood platelet disorder or did at any time during the pendency of the claim. Such an opinion requires clinical testing, in addition to medical expertise, education and training, none of which the Veteran is shown to possess. Without a showing of a current disability, there is no need to discuss anything further regarding inservice incurrence, to include herbicide exposure. The Board notes that in a May 2018 motion for reconsideration, the Veteran alleged that the Board’s reasoning was arbitrary and capricious. Is support of this contention, the Veteran offers no support other than the Board’s reasons and bases for denying service connection failed to take into consideration 38 U.S.C. § 1154(b). Given that the Board has included an analysis of 1154(b) below, the Board does not afford this argument any weight. The Board notes that § 1154(b) does not provide a basis for a favorable decision regarding this issue. Even if the Board concedes that the Veteran developed a blood platelet during combat service, the fact remains that the disorder has not been manifested during the appeal period. Application of § 1154(b) does not obviate the need to show the presence of a current disability. A current disability has not been shown. The May 2018 motion for reconsideration indicated that – when the Board afforded the June 2016 opinion more weight than the July 2015 opinion – the Board failed to apply the clear and convincing evidence standard. After reviewing the pertinent evidence of record, the Board finds, for the reasons previously described, that service connection may not be granted for a blood platelet disorder, even conceding inservice incurrence pursuant to § 1154(b). Finally, the May 2018 motion for reconsideration indicates that the Board did not adequately address an October 2017 response to a supplemental statement of the case (SSOC) issued in October 2017. The arguments essentially allege that the RO failed to substantially comply with the Board’s remand instructions. After reviewing the record, the Board finds that the RO has substantially complied with the Board’s previous remand instructions. In the Board’s previous remand, a VA examiner was asked to, initially, opine as to whether a blood platelet disorder was present. This was done. The June 2016 VA examiner specifically opined that the Veteran does not have a current blood platelet disorder. The examination was adequate and no further action in this regard is indicated. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for a blood platelet disorder. He is not competent to opine that such a disorder exists, as such a conclusion is based on laboratory testing and interpretation of the results thereof requires medical expertise, education and training, which the Veteran is not shown to possess. Therefore, 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. As such, entitlement to service connection for a blood platelet disorder is denied. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disorder, a thoracolumbar spine disorder, a left leg disorder and a right leg disorder is remanded. Prior VA examinations have provided negative nexus opinions concerning a causal relationship between inservice incurrence of a disease or injury and current disability. The Board finds that updated VA examinations are necessary which will permit the application of the provisions of 38 U.S.C. § 1154(b). 2. Entitlement to service connection for OSA is remanded. It is asserted, in pertinent part, that the Veteran’s OSA results from weight gain which is due to an inability to exercise. The inability to exercise, it is contended, can be traced back impairment of spine and leg disabilities. It is also asserted that the OSA is related to the service-connected posttraumatic stress disorder (PTSD). The Board concludes that an updated VA examination is in order to fully consider the Veteran’s assertions. 3. Entitlement to service connection for a thyroid disorder is remanded. The Veteran contends that he is entitled to service connection for a thyroid condition. A VA examination was conducted in June 2016. The examiner opined that the thyroid condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no evidence of hypothyroidism in service and review of peer reviewed medical literature pertaining to herbicide exposure in Vietnam found inadequate or insufficient evidence of an association between exposure to herbicides and there was no overt adverse effect on thyroid homeostasis. The Veteran’s military records indicate that the Veteran served in Vietnam, and, as such, exposure to herbicide agents is presumed. 38 C.F.R. § 3.307. Hypothyroidism is not a condition that is presumed to be linked to exposure to herbicide agents. 38 C.F.R. § 3.309. The Veteran may still prove causation directly, however. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). It has been found that there is limited evidence suggestive of a link between hypothyroidism and exposure to herbicide agents. Veterans and Agent Orange: Update 2014, The National Academies of Sciences, Engineering, and Medicine. Therefore, the rationale of the June 2016 VA examination is inadequate. Once VA undertakes to provide the Veteran with an examination it must provide the Veteran with an adequate one. Therefore, this matter must be remanded for another VA examination in order to discuss the significance, if any, of the 2014 update from the National Academies of Sciences, Engineering, and Medicine. The matters are REMANDED for the following action: 1. Copies of updated pertinent treatment records, VA and non-VA, should be obtained and added to the claims file. 2. Following completion of the above, arrange to provide the Veteran with a VA examination of his cervical spine, thoracolumbar spine, left leg and right leg in order to determine the nature and etiology of disorders of the cervical spine, thoracolumbar spine, left leg and right leg. A complete history should be obtained from the Veteran. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Accepting that the Veteran incurred injuries of the cervical spine, thoracolumbar spine, left leg and right leg during his combat service, are the current disorders of the cervical spine, thoracolumbar spine, left leg and right leg of service onset or otherwise related thereto? Why or why not? (b) As indicated, the examiner must accept as true the Veteran’s lay statements of inservice incurrence of cervical spine, thoracolumbar spine, left leg and right leg injuries during combat. 3. Arrange to provide the Veteran with a VA examination to determine the etiology of his OSA. A complete history should be obtained from the Veteran. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Are the Veteran’s lay statements of inservice incurrence of OSA during combat service satisfactory lay or other evidence of inservice incurrence of OSA? Why or why not? (b) If so, are the Veteran’s lay statements of inservice incurrence of OSA during combat service consistent with the circumstances, conditions or hardships of such service? Why or why not? (c) If so, is it at least as likely as not (50 percent or greater probability) that a medical nexus exists between an inservice incurrence, to include combat incurrence of OSA, and a current diagnosis of OSA? Why or why not? (d) Is the Veteran’s OSA at least as likely as not (50 percent or greater probability) caused by or aggravated by the service-connected PTSD? Why or why not? 4. Arrange to provide the Veteran with a VA examination in order to determine the etiology of any current thyroid disorder. A complete history should be obtained from the Veteran. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Are the Veteran’s lay statements of inservice incurrence of a thyroid disease/injury during combat service satisfactory lay or other evidence of inservice incurrence of the thyroid disease/injury? Why or why not? (b) If so, are the Veteran’s lay statements of inservice incurrence of a thyroid disease/injury during combat service consistent with the circumstances, conditions or hardships of such service? (c) If so, is it at least as likely as not (50 percent or greater probability) that a medical nexus exists between an inservice incurrence, to include herbicide agent exposure/combat incurrence of a thyroid disease/injury, and a current diagnosis of a thyroid condition? Why or why not? (d) What is the significance in the present case, if any, of Veterans and Agent Orange: Update 2014, The National Academies of Sciences, Engineering, and Medicine indicating that there is limited evidence suggestive of a link between hypothyroidism and exposure to herbicide agents? BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel