Citation Nr: 18144904 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-12 252 DATE: October 25, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for ischemic heart disease is denied. Entitlement to service connection for diabetes is denied. Entitlement to service connection for neuropathy of the left upper extremity is denied. Entitlement to service connection for neuropathy of the right upper extremity is denied. Entitlement to service connection for neuropathy of the left lower extremity is denied. Entitlement to service connection for neuropathy of the right lower extremity is denied. REMANDED Entitlement to service connection for a left leg condition to include a left hip condition is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran was not exposed to herbicides during active service. 2. The Veteran’s bilateral hearing loss did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 3. Tinnitus originated in-service and has continued to this day. 4. The Veteran’s cardiovascular disorder did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 5. The Veteran’s diabetes did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 6. The Veteran’s neuropathy of the left upper extremity did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 7. The Veteran’s neuropathy of the right upper extremity did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 8. The Veteran’s neuropathy of the left lower extremity did not originate in service or until years thereafter, and is not otherwise etiologically related to service. 9. The Veteran’s neuropathy of the right lower extremity did not originate in service or until years thereafter, and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 3. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 4. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 5. The criteria for service connection for neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 6. The criteria for service connection for neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 7. The criteria for service connection for neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 8. The criteria for service connection for neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to July 1977. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas made in October 2012 and December 2014; as well as a rating decision from an unidentified RO in November 2017. The Veteran was notified of his right to a personal hearing before the Board, but the Veteran declined such a hearing. The Veteran contends that he is entitled to TDIU. In November 2017, the RO denied TDIU, and the Veteran filed a timely notice of disagreement (NOD) in May 2018. Unfortunately, a statement of the case (SOC) has not been issued in response to the Veteran’s claim. Nevertheless, the Veterans Appeals Control and Locator System (VACOLS) indicated that VA is aware of the NOD, and that VA is developing the Veteran’s appeal. Therefore, the Board shall not take jurisdiction over the claim and remand it for the issuance of a SOC at this time. Manlincon v. West, 12 Vet. App. 238 (1999). Duties to Notify and Assist VA has certain notice and assistance duties in relation to claims filed before the agency. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018). The record reflects that the Veteran has received 38 U.S.C. § 5103(a)-compliant notice. With respect to the duty to assist, all relevant medical records identified by the Veteran or apparent from the record have been obtained. The Veteran attended a VA examination with respect to the bilateral hearing loss and tinnitus claims; the Board has reviewed the report, and finds the examination was adequate. The Veteran was not afforded VA examinations for his claimed diabetes, cardiovascular and peripheral neuropathy disorders. Such examinations are not necessary in this case because the evidence does not establish an in-service event, injury or disease associated with the claimed disorders. The Veteran does not contend that the disorders were present in service, but rather that they were the result of in-service exposure to herbicides. As discussed in further detail below, the Veteran was not exposure to herbicides in service. In the absence of an established in-service event, injury or disease, VA examinations for those disorders are not necessary. 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, 1131. “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 or organic diseases of the nervous system, when manifested to a compensable degree within one year of separation from service; or when continuity of symptomology since separation of service has been established. 38 C.F.R. §§ 3.307, 3.309. Exposure to Herbicide Agents The Board notes that statutory presumptions also exist for diseases associated with exposure to herbicide agents, like ischemic heart disease, type II diabetes, and early onset peripheral neuropathy, and the record indicates that the Veteran served during the Vietnam War era briefly. Nevertheless, the record does not indicate that the Veteran, who served in the U.S. Navy, was deployed to or set foot on Vietnam or any other areas associated with exposure to herbicide agents. Additionally, the Veteran’s military personnel records do not indicate that the Veteran served on any ship that the Veteran has recognized as being associated with exposure to herbicide agents. The Veteran’s records do indicate that he served onboard the USS BAGLEY, but this ship has not been associated with exposure to herbicide agents. Although the record of the ship’s ports of call suggests that the ship visited Thailand – the record does not suggest that the Veteran spent time at any Royal Thai Air Force Bases associated with exposure to herbicide agents. Nor does he have the type of military occupational specialty associated with visitation to the boundaries of the base where herbicides may have been used. The Board consequently finds that the Veteran was not exposed to herbicides during active service. 1. Entitlement to service connection for bilateral hearing loss. At issue is whether the Veteran is entitled to service connection for bilateral hearing loss. The weight of the evidence indicates that the Veteran is not entitled to service connection. In additional to the general requirements for service connection, there are also specific requirements regarding what constitutes a hearing loss disability under VA law. The threshold for normal hearing is. From 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 dB or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s service treatment records are silent for reports of or treatment for bilateral hearing loss. The Veteran’s separation examination indicated that the Veteran’s ears were evaluated as normal, and the Veteran’s pure tone thresholds were as follows in dB: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 15 5 LEFT 10 5 5 5 0 The Veteran underwent a VA examination in November 1982. The Veteran’s ears were evaluated as normal, but the Veteran did not undergo any audiometric testing. The record is silent for decades thereafter. The Veteran underwent private audiometric testing in September 2010. The testing includes the Veteran’s speech discrimination scores, but the results indicate that the Maryland CNC Test was not used. the Veteran’s pure tone thresholds were as follows in dB: HERTZ 500 1000 2000 3000 4000 RIGHT 40 40 50 45 40 LEFT 35 40 40 35 35 An October 2010 private opinion diagnosed the Veteran with bilateral hearing loss and opined that the Veteran’s hearing loss was due to military noise exposure including exposure to noise from heavy machinery such as boilers. The Veteran underwent another VA examination in April 2011. The Veteran reported hearing loss and ringing in his ears sufficient to make conversational speech difficult. The Veteran indicated that he incurred military noise exposure while being in the vicinity of heavy machinery including boilers. The Veteran stated that, after service, he worked at a telephone company for 20 years and as a trucker for 14 years after that. The examiner indicated that the Veteran’s hearing was normal. The Veteran’s speech discrimination scores were 96% bilateral. The Veteran’s pure tone thresholds were as follows in dB: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 35 35 LEFT 15 20 20 25 25 The Veteran underwent another VA examination in August 2011. The examiner indicated that the Veteran’s pure tone thresholds could not be determined. A November 2011 addendum opinion indicated that it was less likely than not that the Veteran’s hearing loss was due to military service. The Veteran underwent another VA examination in November 2014. The Veteran reported military noise exposure included from big guns, missiles, and engines on the ship, and the examiner indicated that the Veteran was exposed to significant amounts of occupational noise exposure following military service. The Veteran manifested speech discrimination scores of 98 percent in the right ear and 96 percent in the left. The examiner opined that the Veteran’s hearing loss was less likely than not related to a period of service, because the Veteran’s service treatment records are negative for significant shifts in hearing thresholds in-service; and the Veteran was exposed to significant amounts of occupational noise exposure following military service. The Veteran’s pure tone thresholds were as follows in dB: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 25 25 25 LEFT 15 20 30 30 30 The weight of the evidence indicates that the Veteran is not entitled to service connection for bilateral hearing loss. The Veteran clearly has manifested a diagnosis of bilateral hearing during the pendency of the appeal, and the Veteran has provided competent reports of military noise exposure. Nevertheless, the Veteran did not seek treatment for bilateral hearing during a period of service. The Veteran’s ears were evaluated as normal upon separation from service, and audiometric testing indicated that the Veteran did not have hearing loss upon separation from service. The Veteran’s military occupational specialty in service was administrative in nature, and did not involve working in a boiler room or other duties involving obvious high levels of noise exposure. The Veteran’s ears were evaluated as normal during a VA examination in November 1982. The earliest audiometric testing suggesting that the Veteran had bilateral hearing loss for VA compensation purposes did not occur until decades after separation from service, and multiple VA medical opinions indicated that the Veteran’s hearing loss was not related to a period of service. Finally, the Veteran incurred years of civilian noise exposure after separation from service. Therefore, the weight of the evidence indicates that the Veteran did not manifest either a diagnosis of bilateral hearing loss within one year of separation from service or continuity of symptomology since separation from service, and a medical nexus between a current diagnosis of bilateral hearing loss and military noise exposure has not been established. The Board notes that the Veteran submitted a private medical opinion that indicates that the Veteran’s hearing loss was caused by a period of service. Unfortunately, the Board cannot afford this opinion much weight, as it is not based on an adequate rationale. The noise exposure relied on by the examiner was that of boiler room noise. This exposure is inconsistent with the Veteran’s administrative duties in service, which were the civilian equivalent of a clerk. Moreover, the opinion did not account for the significance of the fact that the Veteran’s hearing was normal upon separation from service, and that the Veteran did not manifest abnormal hearing until decades of civilian noise exposure that occurred after separation from service. As such, the opinion is not based on sufficient facts and data, and the Board cannot afford the opinion much weight. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The Board has considered the Veteran’s own opinion concerning the etiology of his hearing loss. There is no indication that he has any medical education, training or experience that would allow him to offer a medical opinion. In some cases, a lay person can be competent to offer an opinion on the origin of a disability, namely in cases where the disability is one so observable as to not require medical expertise. The Veteran’s bilateral hearing loss is not such a disease. Hearing loss was not present in service, and not present until decades after service. The Veteran did not serve in a military specialty expected to involve high levels of noise exposure. Given the insidious onset of the hearing loss and the Veteran’s considerable post-service history of noise exposure, the Board finds that only a medical professional has the competency to parse the various noise factors at issue in this case to determine the actual etiology of the hearing loss. Consequently, the Board finds the Veteran’s opinions on the matter lack competency. Here, the preponderance of the evidence is against the claim. 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 bilateral hearing loss is denied. 2. Entitlement to service connection for tinnitus. With regard to the claim for tinnitus, the analysis and the result are different. The Court has specifically held that tinnitus is a type of disorder associated with symptoms capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002). As such, the primary role of the Board in adjudicating the tinnitus claim, is to assess the credibility of the Veteran’s statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board finds no reason to doubt the Veteran’s credibility. The Veteran has been diagnosed with tinnitus, and he has consistently reported that his tinnitus began in-service and continues to this day. The Veteran has not attempted to bolster or exaggerate his symptoms, and based on his reports of ringing, the Veteran was diagnosed with tinnitus. As such, the criteria for service connection for tinnitus have been met. In reaching this conclusion, the Board acknowledges that a VA examiner found that it was not likely that the Veteran’s tinnitus was related to his military service, because tinnitus is not documented in the service treatment records. However, because the Board finds the Veteran’s statements to be credible as to the onset and continuity of ear ringing, the statements sufficiently refute the basis of the examiner’s conclusion. Thus, resolving any reasonable doubt in the Veteran’s favor, the Board finds that service connection for tinnitus is warranted and the Veteran’s claim is granted. 3. Entitlement to service connection for ischemic heart disease. At issue is whether the Veteran is entitled to service connection for ischemic heart disease. The weight of the evidence indicates that the Veteran is not entitled to service connection. The Veteran’s service treatment records are silent for reports of or treatment for ischemic heart disease or any other cardiac condition. The Veteran’s separation examination indicated that the Veteran’s heart was evaluated as normal. The Board notes that the Veteran has claimed that he was exposed to herbicide agents, but, as discussed previously, the Board has found that exposure to herbicide agents has not been established. The Veteran underwent a VA examination in November 1982. The Veteran’s heart was evaluated as normal. The Veteran’s civilian treatment records indicate that the Veteran manifested a diagnosis of ischemic heart disease decades thereafter, and the Veteran’s condition persists to this day. The weight of the evidence indicates that the Veteran is not entitled to service connection for ischemic heart disease. The Veteran clearly has a current diagnosis of ischemic heart disease. Nevertheless, the Veteran’s treatment records are silent for reports of or treatment for a heart condition, and the Veteran’s heart was evaluated a normal upon separation from service as well as decades thereafter in 1982. Moreover, the record does not contain a competent medical opinion suggesting that a medical nexus exists between an in-service incurrence and a current diagnosis of ischemic heart disease. Therefore, the weight of the evidence indicates that the Veteran did not manifest either a diagnosis of a cardiovascular-renal condition within one year of separation from service or continuity of symptomology since separation from service, and a medical nexus between a current diagnosis of ischemic heart disease and an in-service incurrence has not been established. The Board has considered the Veteran’s own opinion concerning the etiology of his cardiovascular disability. As noted previously, he is a layperson. Cardiovascular disability, including ischemic heart disease, is not the type of disease subject to lay competency. The first indication of cardiovascular disability was decades after service. Moreover, the Veteran’s theory in this case is that the disease was caused by herbicides exposure; he does not allege any onset in service or continuity since service. Given the insidious onset of the heart disease, and the lack of exposure to herbicides in service, the Board finds that only a medical professional has the competency to determine the actual etiology of the heart disease. Consequently, the Board finds the Veteran’s opinions on the matter lack competency. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for ischemic heart disease. 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 ischemic heart disease is denied. 4. Entitlement to service connection for diabetes. At issue is whether the Veteran is entitled to service connection for diabetes. The weight of the evidence indicates that the Veteran is not entitled to service connection. The Veteran’s service treatment records are silent for reports of or treatment for diabetes. The Veteran’s separation examination indicated that the Veteran’s endocrine system was evaluated as normal. The Board notes that the Veteran has claimed that he was exposed to herbicide agents, but, as discussed above, the Board has found that exposure to herbicide agents has not been established. The Veteran underwent a VA examination in November 1982. The Veteran’s endocrine system was evaluated as normal. The Veteran’s civilian treatment records indicate that the Veteran manifested a diagnosis of type II diabetes decades thereafter, and the Veteran’s condition persists to this day. The weight of the evidence indicates that the Veteran is not entitled to service connection for diabetes. The Veteran clearly has a current diagnosis of type II diabetes. Nevertheless, the Veteran’s treatment records are silent for reports of or treatment for diabetes, and the Veteran’s endocrine system was evaluated a normal upon separation from service as well as decades thereafter in 1982. Moreover, the record does not contain a competent medical opinion suggesting that a medical nexus exists between an in-service incurrence and a current diagnosis of diabetes. Therefore, the weight of the evidence indicates that the Veteran did not manifest either a diagnosis of diabetes within one year of separation from service or continuity of symptomology since separation from service, and a medical nexus between a current diagnosis of diabetes and an in-service incurrence has not been established. The Board has considered the Veteran’s own opinion concerning the etiology of his diabetes. Diabetes is a disease of insidious onset, and thus is not susceptible to lay opinion as to etiology, particularly where, as here, the Veteran does not contend that the diabetes or any associated symptoms originated in service or until years thereafter. Rather, he contends the diabetes is secondary to herbicides exposure. Given the insidious onset of the diabetes, the Board finds that only a medical professional has the competency to determine the actual etiology of the diabetes. Consequently, the Board finds the Veteran’s opinions on the matter lack competency. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for diabetes. 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 diabetes is denied. 5. Entitlement to service connection for neuropathy of the bilateral upper and lower extremities. At issue is whether the Veteran is entitled to service connection for neuropathy of the bilateral upper and lower extremities. The weight of the evidence indicates that the Veteran is not entitled to service connection. The Veteran’s service treatment records are silent for reports of or treatment for neuropathy or any other neurological condition of the extremities. The Veteran’s separation examination indicated that the Veteran’s neurological system as well as the upper and lower extremities were evaluated as normal. The Board notes that the Veteran has claimed that he was exposed to herbicide agents, but, as discussed above, the Board has found that exposure to herbicide agents has not been established. The Veteran underwent a VA examination in November 1982. The Veteran’s nervous system was evaluated as normal. The Veteran’s civilian treatment records indicate that the Veteran manifested a diagnosis of sciatica (a neurological condition impacting the extremities) decades thereafter, and the Veteran’s condition persists to this day. The weight of the evidence indicates that the Veteran is not entitled to service connection for neuropathy of the bilateral upper and lower extremities. The Veteran clearly has a current diagnosis of a neurological condition impacting the extremities. Nevertheless, the Veteran’s treatment records are silent for reports of or treatment for a neuropathy of the upper or lower extremities, and the Veteran’s neurological system and upper and lower extremities were evaluated a normal upon separation from service as well as decades thereafter in 1982. Moreover, the record does not contain a competent medical opinion suggesting that a medical nexus exists between an in-service incurrence and a current diagnosis of neurological condition impacting the upper and lower extremities. Therefore, the weight of the evidence indicates that the Veteran did not manifest either a diagnosis within one year of separation from service or continuity of symptomology since separation from service, and a medical nexus between a current diagnosis of and an in-service incurrence has not been established. The Board has considered the Veteran’s own opinion concerning the etiology of his neuropathies. Peripheral neuropathy is a disease of insidious onset, and thus is not susceptible to lay opinion as to etiology, particularly where, as here, the Veteran does not contend that the neuropathies or any associated symptoms originated in service or until years thereafter. Consequently, the Board finds that only a medical professional has the competency to determine the actual etiology of the neuropathies, and the Veteran’s opinions on the matter lack competency. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to service connection for neuropathy of the bilateral upper and lower extremities. 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 neuropathy of the bilateral upper and lower extremities is denied. REASONS FOR REMAND 1. Entitlement to service connection for a left leg condition to include a left hip condition is remanded. The Veteran contends that he is entitled to service connection for a left leg condition to include a left hip condition. The Veteran’s treatment records indicate that the Veteran has manifested a current diagnosis of a left hip condition. During a VA examination conducted in November 1982, the Veteran provided competent reports of injuring his left leg during a period of service. This is sufficient to trigger VA’s duty to assist, and this matter must be remanded for a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he is entitled to an acquired psychiatric disorder. The Veteran’s treatment records indicate that the Veteran has manifested a current diagnosis to include posttraumatic stress disorder (PTSD) and depression. The Veteran has submitted a written statement providing competent reports of in-service incurrences including witnessing psychologically disturbing events. This is sufficient to trigger VA’s duty to assist, and this matter must be remanded for a VA examination. See McLendon. The matter is REMANDED for the following action: 1. Arrange to provide the Veteran with a VA examination in order to determine the nature and etiology of the Veteran’s left leg and left hip conditions. 2. Arrange to provide the Veteran with a VA examination in order to determine the nature and etiology of the Veteran’s acquired psychiatric disorder to include PTSD and depression. (Continued on the next page)   3. Then, readjudicate the claims on appeal. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel