Citation Nr: 18154616 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-53 131 DATE: November 30, 2018 ORDER Entitlement to service connection for lower back pain is denied. Entitlement to service connection for blurred vision is denied. Entitlement to service connection for loss of sense of smell is denied. Entitlement to service connection for frequent headaches is denied. Entitlement to service connection for numbness in the left hand and arm is denied. Entitlement to service connection for memory loss is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that lower back pain began during active service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of blurred vision. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of loss of sense of smell. 4. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of frequent headaches. 5. The preponderance of the evidence is against finding that numbness in the left hand and arm began during active service, or is otherwise related to an in-service injury, event, or disease. 6. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of memory loss. 7. Throughout the period on appeal, the Veteran’s hearing impairment has been no worse than Level II in the left ear and Level I in the right ear. CONCLUSIONS OF LAW 1. The criteria for service connection for lower back pain have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2018). 2. The criteria for service connection for blurred vision have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 3. The criteria for service connection for loss of sense of smell have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 4. The criteria for service connection for frequent headaches have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 5. The criteria for service connection for numbness in the left hand and arm have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 6. The criteria for service connection for memory loss have not been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2018). 7. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.385, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.85, Diagnostic Code 6100, 4.86 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to May 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed an application for service connection for lower back pain, numbness in the left hand and arm, memory loss, blurred vision, loss of smell, and frequent headaches in March 2013. In support of his claim, the Veteran explained that he was exposed to Agent Orange while serving in Vietnam and it caused each of the listed illnesses. VA has conceded herbicide agent exposure, as the Veteran has verified service in the Republic of Vietnam. Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). For VA purposes, an “herbicide agent” includes the chemicals 2,4–D; 2,4,5–T and its contaminant TCCD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i). For the purposes of determining herbicide exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders. See 38 C.F.R. § 3.309(e). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for lower back pain. The Veteran complained of lower back pain in May 2013 at the Fort Wayne VAMC; x-rays showed degenerative changes of the lumbar spine. Accordingly, a current disability has been established. However, the preponderance of the evidence is against the finding of a nexus to an in-service event, injury, or disease. A review of the Veteran’s service treatment records shows no complaints of any back pain or any treatment for back pain. Moreover, no problems were noted at the Veteran’s May 1970 separation exam. In fact, the first complaint of lower back pain in the record was made nearly 43 years after separation from service and the Veteran only reported the back pain being present for the past week and a half. Thus, there is no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation of service or had its onset in service and continued ever since service. Although VA has conceded herbicide agent exposure, arthritis is not a disorder entitled to presumptive service connection. The only evidence of record relating the Veteran's claimed disability to service is the Veteran's own general conclusory statement, which does not meet the low threshold of an indication that the claimed disability is related to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Consequently, VA is under no duty to afford the Veteran a VA examination and opinion. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the preponderance of the evidence is against the finding of a nexus to an in-service event, injury, or disease, entitlement to service connection for lower back pain is denied. 2. Entitlement to service connection for blurred vision. The Veteran alleges blurred vision as a result of exposure to Agent Orange. However, the record fails to show the presence of a disability manifested by blurred vision for which compensation may be rendered. The Veteran’s service treatment records are silent for any complaints of or treatment for blurred vision. Moreover, the Veteran’s current medical records make no mention of blurred vision. In fact, at a March 2007 appointment at the Fort Wayne VAMC, the Veteran denied blurred vision. The Veteran has not presented any evidence showing that he has symptoms that result in any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). As the preponderance of the evidence is against the finding of a current disability, entitlement to service connection for blurred vision is denied. 3. Entitlement to service connection for loss of sense of smell. The Veteran alleges his loss of sense of smell is a result of exposure to Agent Orange. However, the record fails to show a diagnosis of loss of sense of smell. The Veteran’s service treatment records are silent for any complaints of or treatment for loss of sense of smell. Moreover, the Veteran’s current medical records make no mention of loss of sense of smell. The Veteran has not presented any evidence showing that he has symptoms that result in any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). As the preponderance of the evidence is against the finding of a current disability, entitlement to service connection for loss of sense of smell is denied. 4. Entitlement to service connection for frequent headaches. The Veteran alleges frequent headaches as a result of exposure to Agent Orange. However, the record fails to show the presence of a disability manifested by chronic headaches. The Veteran’s service treatment records are silent for any complaints of or treatment for frequent headaches. Moreover, the Veteran’s current medical records make no mention of frequent headaches. In fact, from March 2007 to January 2013 during appointments at the Fort Wayne VAMC, the Veteran denied headaches on at least six different occasions. The Veteran has not presented any evidence showing that he has symptoms that result in any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). As the preponderance of the evidence is against the finding of a current disability, entitlement to service connection for frequent headaches is denied. 5. Entitlement to service connection for numbness in the left hand and arm. The Veteran complained of numbness and tingling of the left hand in March 2007 for approximately two weeks at the Fort Wayne VAMC. He indicated that he was a truck driver and had caught his elbow on the edge of his trailer. He was assessed with numbness in the left 5th finger and prescribed a brace. Resolving all reasonable doubt in favor of the Veteran, a current disability has been established. However, the preponderance of the evidence is against the finding of a nexus to an in-service event, injury, or disease. A review of the Veteran’s service treatment records shows no complaints of any left arm or hand pain nor any treatment for left arm or hand pain. Moreover, no problems were noted at the Veteran’s May 1970 separation exam. In fact, the first complaint of left arm and hand pain in the record was made nearly 37 years after separation from service and the Veteran only reported the pain being present for the past two weeks. Although VA has conceded herbicide agent exposure, hand and arm pain is not a disorder entitled to presumptive service connection. The only evidence of record relating the Veteran's claimed disability to service is the Veteran's own general conclusory statement, which does not meet the low threshold of an indication that the claimed disability is related to service. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran and rejecting the theory that medical examinations are to be routinely and virtually automatically provided to all veterans in disability cases involving nexus issues). Consequently, VA is under no duty to afford the Veteran a VA examination and opinion. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the preponderance of the evidence is against the finding of a nexus to an in-service event, injury, or disease, entitlement to service connection for numbness of the left hand and arm is denied. 6. Entitlement to service connection for memory loss. The Veteran alleges memory loss as a result of exposure to Agent Orange. However, the record fails to show a diagnosis of memory loss. The Veteran’s service treatment records are silent for any complaints of or treatment for memory loss. Moreover, the Veteran’s current medical records make no mention of memory loss. In fact, at the Veteran’s most recent VA examination for posttraumatic stress disorder in December 2016, the examiner did not find the Veteran to have any memory loss. The Veteran has not presented any evidence showing that he has symptoms that result in any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity). As the preponderance of the evidence is against the finding of a current disability, entitlement to service connection for memory loss is denied. II. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule 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. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already 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). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). 7. Entitlement to a compensable rating for bilateral hearing loss. The Veteran was granted service connection for bilateral hearing loss in a January 1976 rating decision, evaluated at 0 percent, effective July 31, 1975. In March 2013, the Veteran filed a claimed for an increased rating of his bilateral hearing loss. The Veteran was given a VA examination for his bilateral hearing loss in August 2013. The results from this examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 25 35 30 30 LEFT X 50 65 75 85 Based on these results, the average puretone threshold was 30 decibels for the right ear and 69 for the left ear. 38 C.F.R. § 4.85(d). Speech recognition was 98 for the right ear and 94 for the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level I Roman numeral designation for the right ear and a Level II Roman numeral designation for the left ear. When the Level I and Level II designations are applied to Table VII, the result is a 0 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. Thus, this testing results in a rating equal to the already assigned 0 percent. There is no evidence that this examiner is not competent and credible, thus the Board finds that this examination is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295. The record does not contain any additional hearing examinations since the Veteran’s application for an increased rating. Based on the foregoing, the preponderance of the evidence is against a compensable rating for the Veteran’s bilateral hearing loss. Accordingly, entitlement to a compensable rating for bilateral hearing loss is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel