Citation Nr: 18148982 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-39 912 DATE: November 8, 2018 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for neuropathy of the lower extremities is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss manifests, at worst, by Level I hearing impairment in the right ear, and Level III hearing impairment in the left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code 6100, 4.86 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from June 1968 to November 1970, and again from May 1972 to May 1974, to include service in the Republic of Vietnam. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a compensable disability rating for bilateral hearing loss The Veteran claims entitlement to a compensable disability rating. The Veteran was granted service connection for bilateral hearing loss and assigned a noncompensable disability rating, effective September 24, 2010, in a May 2012 rating decision. The Veteran’s claim for a compensable disability rating was denied in a May 2015 rating decision. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In evaluating hearing loss under the schedular criteria, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in both ears. See 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran’s hearing loss was evaluated in an April 2015 VA examination. At his April 2015 VA examination, the Veteran’s pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 45 60 60 48 LEFT 35 60 70 65 58 Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 92 percent in the right ear and of 84 in the left ear. The results do not present an exceptional pattern of hearing impairment. At the April 2015 examination, the Veteran reported significant difficulty understanding speech in all environments, which is a functional effect of his hearing loss on his daily activities. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Using average pure tone thresholds and speech recognition abilities, Table VI reveals the highest numeric designation of hearing impairment is I for the right ear and III for the left ear. See 38 C.F.R. § 4.85. Entering the category designations for each ear into Table VII results in a noncompensable disability evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85. The Board acknowledges the Veteran’s contentions that his service-connected bilateral hearing loss warrants an increased evaluation. The Veteran is capable of observing that his hearing loss has increased in severity. The lay descriptions of the Veteran’s symptoms are competent and credible. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment. Furthermore, the opinions and observations of the Veteran cannot show that the rating criteria for a higher rating under 38 C.F.R. § 4.85 are met. In this case, the Veteran does not possess the level of training or expertise needed to determine whether his observed level of hearing loss meets the 10 percent rating criteria as set forth by VA regulations. The Board finds that the most probative evidence of record does not support assigning a compensable disability rating for the Veteran’s bilateral hearing loss during the appeal period. REASONS FOR REMAND 1. Entitlement to service connection for neuropathy of the lower extremities is remanded. The Veteran claims entitlement to service connection for peripheral neuropathy of the lower extremities. He has a current diagnosis of neuropathy of the lower extremities. In an April 2015 VA foot conditions examination, the Veteran was diagnosed with peripheral neuropathy of the left and right foot. In an April 2015 medical opinion, the VA examiner noted that it is less likely than not that the Veteran’s bilateral foot peripheral neuropathy was related to his active service. However, the VA examiner’s stated supporting rationale was “cannot say whether current foot pain is service connected.” The Board finds that the April 2015 medical opinion is speculative and not based on supportive rationale. The Board notes that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient rationale. Jones v. Shinseki, 23, Vet. App. 382, 389-90 (2010); 38 C.F.R. § 3.10. A medical opinion without rationale is not probative. Miller v. West, 11 Vet. App. 345 (1998). Therefore, this opinion is of no probative value, and cannot weigh against the Veteran’s claim. An additional VA opinion addressing a possible nexus between the Veteran’s current neuropathy and period of active service is required before the Board can comprehensively evaluate the Veteran’s claim for service connection. At his April 2015 VA examination, the Veteran reported having bilateral foot pain when he returned from serving in the Republic of Vietnam. The Veteran’s service personnel records note that he served there from 1968 to 1970. Therefore, he is presumed to have been exposed to herbicides. 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). If a veteran was exposed to an herbicide agent during active military service, early-onset peripheral neuropathy may be presumptively service-connected. 38 U.S.C. § 1116(a)(2) (2012); 38 C.F.R. § 3.309(e) (2017). To warrant presumptive service connection for early-onset peripheral neuropathy, it must manifest to a compensable degree within one year of last exposure to herbicides. The Veteran has been diagnosed with peripheral neuropathy and stated that he had symptoms after returning from Vietnam. In his VA Form 9 he stated that he thought his peripheral neuropathy was due to his Vietnam service. The theory of presumptive service connection is reasonably raised by the record. Therefore, on remand, the examiner should provide an opinion as to whether the peripheral neuropathy was present within one year of the Veteran’s last exposure to herbicides in May 1970 (the date his service personnel records note that he departed Da Nang for Okinawa). The matter is REMANDED for the following action: 1. Provide the Veteran’s claims file to a qualified VA clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s peripheral neuropathy of the lower extremities began during active service, is related to an incident of service, or began within one year of his last exposure to herbicides, which was in May 1970. Although an independent review of the claims file is required, the examiner’s attention is drawn to the April 2015 VA examination report, wherein the Veteran reported numbness in his feet upon return from Vietnam. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page)   2. Readjudicate the claim. If the outcome is unfavorable, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel