Citation Nr: 18141486 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-46 918 DATE: October 10, 2018 ORDER New and material evidence (NME) sufficient to reopen the claim for service connection for bilateral hearing loss has been received. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. Service connection for bilateral upper extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is denied. Service connection for bilateral lower extremity peripheral neuropathy, to include as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. Evidence added to the record since the previous final is not cumulative of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss. 2. The Veteran’s bilateral hearing loss was not incurred in or due to his time in service. 3. The Veteran’s tinnitus was incurred in and due to his time in service. 4. The Veteran’s bilateral upper extremity peripheral neuropathy was not incurred in or due to his time in service, to include exposure to herbicide agents. 5. The Veteran’s bilateral lower extremity peripheral neuropathy was not incurred in or due to his time in service, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for tinnitus hearing loss have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for bilateral upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1967 to May 1969. As a preliminary matter, the Board notes the Veteran has been in receipt of a total disability rating based on individual unemployment (TDIU) since February 2000. New and Material Evidence Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran’s original claim for service connection for bilateral hearing loss was denied in an August 1992 rating decision because there was no evidence the Veteran’s left ear hearing loss was incurred in or due to his time in service and because the Veteran did not have diagnosed hearing loss for VA purposes in his right ear. The Veteran did not appeal and therefore, the decision became final. The Veteran submitted the present claim for service connection for bilateral hearing loss in December 2012. A January 2014 rating decision denied the claim. The Veteran appealed. Since the previous final denial, an examination showed the Veteran had been diagnosed with right ear hearing loss for VA purposes. (See January 2014 examination.) Therefore, the Board will reopen the claim and address the claim on its merits below. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hearing Loss and Tinnitus For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is 0 to 20 decibels. The Veteran asserts he has bilateral hearing loss which was incurred in or caused by his time in service. The Veteran had an examination for his hearing in January 2014. The examiner found the Veteran’s speech discrimination score was 80 percent in his right ear and 84 percent in his left ear. The Veteran’s puretone thresholds were as follows: Hertz 500 1000 2000 3000 4000 Right Ear 50 50 60 60 65 Left Ear 45 50 55 65 75 The January 2014 examination shows the Veteran has bilateral hearing loss for VA purposes. The Board acknowledges the Veteran reported being exposed to loud noises while in service, including artillery fire, gun fire, and bombardments every day. (See August 2018 statement.) However, the Veteran’s service treatment records (STRs), including his entrance and separation examinations, are negative for treatment, complaint, or a diagnosis of bilateral hearing loss for VA purposes. Additionally, the January 2014 examiner opined the Veteran’s bilateral hearing loss was less likely than not due to the Veteran’s time in service. The examiner explained the Veteran’s separation examination showed no significant change in hearing loss from his induction audiogram. A 1992 examination indicated the Veteran’s hearing thresholds were not worse than those obtained in 1967, which were over two decades old. The examiner noted that while there were reports of specific military related noise exposure, the objective audiogram testing did not support a finding that the Veteran’s bilateral hearing loss was due to his time in service. The Veteran’s record shows he has been treated for his hearing loss throughout the years. (See September 1999, August 2013 treatment notes.) However, this objective evidence is negative for any indication the Veteran’s bilateral hearing loss was incurred in or due to his time in service. Therefore, while the Veteran currently has a diagnosis of bilateral hearing loss, the objective evidence of record does not show it was incurred in or due to his time in service. Regarding the Veteran’s claim for tinnitus, the January 2014 examiner noted the Veteran’s tinnitus and opined the Veteran’s tinnitus was less likely than not incurred in and due to his time in service. However, the Court has found a lay person competent to identify tinnitus which is a disorder that can be identified based on lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Therefore, the claim for service connection for tinnitus will be granted. Bilateral Upper and Lower Extremity Peripheral Neuropathy The Veteran claims he has bilateral upper and bilateral lower extremity peripheral neuropathy that was incurred in and due to his time in service, to include exposure to herbicide agents during his time in Vietnam. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, the law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. For purposes of the presumption, “herbicide agents” are 2,4-D, 2,4,5-T, and its contaminant TCDD, cacodylic acid, and picloram. 38 C.F.R. § 3.307(a)(6)(i). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam (Vietnam) during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). This presumption also extends to individuals who performed service in the Air Force or Air Force Reserve under circumstances which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. Id. For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service. However, early onset peripheral neuropathy must have manifested to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during his active service. 38 C.F.R. § 3.307 (a)(6)(ii). The Veteran has been treated for neuropathy over the years. (See September 2013, November 2014, October 2015, treatment notes.) The Veteran’s STRs are negative for treatment or complaint of neuropathy or its symptoms. The Veteran’s record also does not contain a link between the Veteran’s current neuropathy and his time in service. Therefore, the claim must be denied on a direct basis. The Veteran also contends his neuropathy was due to his exposure to herbicide agents. While the Veteran has reported his peripheral neuropathy symptoms manifested to a compensable degree within a year of his last exposure to herbicide agents, the objective evidence does not support this claim. The Veteran’s records do not show any symptoms or treatment for such a condition within a year of his last exposure to herbicide agents or within a year of his separation from service. A March 2015 statement from a doctor who had treated the Veteran for approximately two years said the Veteran had peripheral neuropathy and was exposed to herbicides while in service and within a few months post-discharge, was having constriction symptoms and medical problems. However, the doctor does not offer any explanation as to what evidence he based his opinion on, nor does he cite any objective evidence for the basis of his opinion. Therefore, the Board places little probative weight on this letter. In December 2017, the Veteran submitted an article on the effects of herbicide exposure and peripheral neuropathy. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). However, treatise evidence must “not simply provide speculative generic statements not relevant to the [claimant]’s claim.” Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, “standing alone,” must discuss “generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion.” Id. (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (medical treatise evidence must demonstrate connection between service incurrence and present injury or condition); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (generic statement about the possibility of a link between chest trauma and restrictive lung disease is too general and inconclusive); Mattern v. West, 12 Vet. App. 222, 227 (1999) (generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive (quoting Sacks, supra)). In this case, the article submitted by the Veteran only provides general information regarding exposure to herbicide agents and peripheral neuropathy. It is not accompanied by any corresponding clinical evidence specific to the Veteran, and does not suggest a relationship between the Veteran’s peripheral neuropathy with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. As such, the Board places little probative weight on this evidence. Regarding all the claims above, the Board acknowledges and has considered the Veteran’s statements that his hearing loss and peripheral neuropathy bother him, causing him pain and discomfort, and that he believes these disabilities are due to his time in service, including his exposure to herbicide agents. The Board also recognizes the Veteran continues to seek medical treatment for these conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is important for the Veteran to understand that the medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his disabilities are the result of service, providing a highly clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claims. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel