Citation Nr: 18156023 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-09 704 DATE: December 6, 2018 ORDER Entitlement to service connection for a bilateral hearing loss is denied. Entitlement to service connection for residuals of a traumatic brain injury is denied. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is denied. Entitlement to a separate grant of service connection for bilateral lower extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. The Veteran is not shown to have a bilateral hearing loss disability for VA compensation purposes. 2. The preponderance of the probative medical evidence indicates that the Veteran does not have a traumatic brain injury or residuals from such an injury. 3. The preponderance of the probative medical evidence indicates that the Veteran does not have a bilateral upper extremity peripheral neuropathy disability. 4. The preponderance of the probative medical evidence indicates that the Veteran does not have any symptoms of a distinct bilateral lower extremity peripheral neuropathy disability that is separate from the symptoms of his already service-connected right and left leg radiculopathy. CONCLUSIONS OF LAW 1. A bilateral hearing loss was neither incurred nor aggravated inservice, nor may a sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. 2. Residuals of a traumatic brain injury were not incurred or aggravated in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 3. Bilateral upper extremity peripheral neuropathy was not incurred or aggravated in service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria have not been met for a separate grant of service connection for bilateral lower extremity peripheral neuropathy. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2002 to May 2005 and from May 2006 to July 2009. Bilateral Hearing Loss The Veteran contends that he has a bilateral hearing loss disability that was caused by inservice exposure to acoustic trauma. The Veteran has reported that he has difficulty understanding speech during conversations. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. A sensorineural hearing loss may be presumed to have been incurred in service if it was compensably disabling within a year of a veteran’s separation from active duty. 38 C.F.R. §§ 3.307, 3.309(a). 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 at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 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. In this case, the Board has reviewed all of the evidence of record, and finds that the preponderance of the evidence indicates that the Veteran does not have a current hearing loss disability for VA compensation purposes. 38 C.F.R. § 3.385. At an August 2009 VA examination, the Veteran was found to have normal hearing. Puretone threshold testing showed the following results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 15 LEFT 10 10 10 10 15 Speech audiometry revealed speech recognition ability of 100 percent in both ears. At a September 2009 VA ear disease examination, the examiner did not find any ear disease or abnormality and wrote that the Veteran had normal hearing bilaterally. The Veteran also attended a VA examination in September 2018. Puretone threshold testing showed the following results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 15 15 LEFT 15 15 20 20 20 Speech audiometry showed speech recognition ability of 100 percent in both ears. The Veteran’s VA treatment records and service treatment records also do not show any evidence of a hearing loss that meets the definition of a hearing loss disability under 38 C.F.R. § 3.385. The Veteran’s hearing thresholds were tested in service in June 2007 and June 2008, and found to be within normal limits for VA purposes. There is no evidence in any of the Veteran’s past medical records that he has ever had, at any time, a hearing loss disability under 38 C.F.R. § 3.385 in either ear. As is evident from the above, the evidence shows that the Veteran has not in the past and does not currently exhibit a “hearing loss disability” as that term is defined by 38 C.F.R. § 3.385. VA examinations in August 2009 and September 2018, show pure tone thresholds and speech recognition testing results which are not of sufficient severity to be classified as a disability for VA purposes. VA regulations specifically defines the parameters of a hearing loss disability for compensation purposes, and this Veteran does not meet the criteria for establishing a current disability. Id. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. § 1110. In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the audiometric testing during the course of the claim does not reflect a hearing loss disability in either ear for VA purposes, service connection is not warranted. The Board acknowledges that the Veteran is competent to describe experiencing loud noise exposure during service and any symptomatology regarding perceived hearing loss, including having difficulty understanding speech. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, as a lay person, his opinion as to the degree of hearing loss is not a competent medical opinion. Determining the degree of hearing loss requires audiological examination and testing by a qualified professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The most probative evidence of record comes from the audiological examinations the Veteran has undergone rather than from his subjective assessment of the extent of his hearing loss. For the foregoing reasons, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s bilateral hearing ability has not at any time been shown to meet the criteria for a hearing loss disability for VA purposes. The claim for service connection must therefore be denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Traumatic Brain Injury The Veteran contends that he has residuals of a traumatic brain injury that were incurred during service. In January 2016 the Veteran testified that in April 2007, while climbing a steep rock face, he fell, tumbled down a mountain and hit his face on his rifle. He reported being treated by a medic, but needing to continue the mission the Veteran drove on even though he was in great pain. The Veteran stated that since that incident he has continued to receive treatment for migraine headaches. At an October 2016 VA neurological examination, the Veteran was diagnosed with migraine headaches including migraine variants, which were noted to be a residual of a traumatic brain injury in 2007. At an April 2017 VA examination, the Veteran was diagnosed with tension headaches, including prostrating migraine attacks once a month. In an April 2017 rating decision, the Veteran was granted entitlement to service connection for tension headaches, evaluated as 50 percent disabling. That rating is not on appeal. Rather, the Veteran has requested a separate compensable rating for residuals of a traumatic brain injury in addition to his 50 percent evaluation for migraine headaches. The Board has reviewed all of the evidence of record and finds that entitlement to service connection for residuals of a traumatic brain injury is not warranted. While the Veteran’s service treatment records confirm that he fell 30 feet down a mountain in Afghanistan in April 2007, they do not indicate that he was diagnosed with or even suspected of suffering a traumatic brain injury at that time. He was treated primarily for low back pain with a decreased spinal range of motion. The Veteran’s post-service treatment records also show that while he has reported a history of a traumatic brain injury and such an injury has been suspected at times, the preponderance of the evidence indicates that he does not have a diagnosis of traumatic brain injury. At an April 2009 VA examination, neurological evaluation found no paralysis, paresthesias, numbness, memory loss, poor coordination, vision loss, speech difficulty, or other neurological symptoms. At a September 2009 VA examination, neurological evaluation found no history of memory loss, poor concentration, vision loss, speech difficulty, or other neurological symptoms. The Veteran most recently attended a VA examination in September 2018. The Veteran reported stumbling and rolling down a hill, causing him to hit his nose with a machine gun. The examiner noted that a traumatic brain injury evaluation in 2009 stated that the Veteran had brief loss of consciousness, and woke up disoriented not knowing where he was, but immediately recalled. The examiner noted that the records were silent for head injuries from 2007-2009, and that post deployment, he reported headaches, but no head injury. The Veteran complained of mild memory loss, but had normal judgment, orientation, motor activity, speech, consciousness, and spatial orientation. There were no neurobehavioral effects. The examiner found no subjective symptoms or other neurological conditions attributable to a traumatic brain injury. The examiner concluded that there was no medical evidence to support a diagnosis of a traumatic brain injury. The examiner wrote that the main injury in the Veteran’s 2007 accident was to his lower back, with residual leg pain, numbness and groin pain. He wrote that the information in the military records did not allow for the conclusion that the claimant suffered a traumatic brain injury at that time. He noted that the 2011 brain MRI imaging studies were normal. The Veteran’s VA treatment records note a history of traumatic brain injury, which appears to be based on the appellant’s self-reported history. An August 2009 head CT scan showed no abnormalities and no intracranial pathology. In July 2009, the Veteran reported having memory problems and headaches, and his history of facial trauma was discussed. He was noted to have facial trauma, rule out concussion, and posttraumatic headaches with unremarkable neurologic examination. At a December 2009 physical medicine rehabilitation session, the Veteran reported having face trauma when he fell down a hill, which was noted to possibly suggest a concussive event, although the history was not fully supportive of a definite traumatic brain injury mechanism of injury. It was noted that the Veteran’s other medical conditions related to alcohol abuse and insomnia could give rise to symptoms and cognitive complaints that could mimic traumatic brain injury. An April 2011 brain MRI was normal. A December 2017 primary care evaluation found that the appellant’s cerebral function was intact, with no cranial nerve deficits, and no pathologic reflexes. After reviewing the record, the Board finds that the preponderance of the evidence weighs against finding that the Veteran has a current diagnosis of a traumatic brain injury or any traumatic brain injury residuals. The Veteran’s VA treatment records show only a history of a past traumatic brain injury, but no brain imaging ever found a brain abnormality, and there have not been any clear postservice neurological findings that are related to an inservice traumatic brain injury. The September 2018 VA examiner reviewed the Veteran’s full medical history and considered his lay assertions, but found that the evidence did not indicate that the claimant had incurred a traumatic brain injury. The Board finds this medical opinion to be highly probative evidence which weighs heavily against the claim. In considering the Veteran’s own statements, while he is competent to testify about symptoms relating to his claimed disorder, as a layperson, he is not qualified to diagnose a traumatic brain injury or any resulting residuals, or to express an opinion as to the etiology of any such residuals. See Layno, 6 Vet. App. at 470. While he is competent to report that he was hit in the face with a firearm when he fell down a hill in service, he is not competent to state that he incurred a traumatic brain injury at that time, and his assertions that he has current symptomatology which is indicative of a traumatic brain injury is not competent evidence. Moreover, such lay assertions are outweighed by the findings of competent medical professionals, such as the September 2018 VA examiner, who found that the Veteran did not incur a traumatic brain injury in service, and who found no current clinically observable residuals of a traumatic brain injury. The Board notes that the Veteran has also reported numerous psychiatric symptoms, including memory problems. The Veteran was granted entitlement to service connection for posttraumatic stress disorder in an October 2018 rating decision, and the preponderance of the evidence indicates that these symptoms are more likely psychiatric in nature and not due to a traumatic brain injury. The grant of service connection also adequately compensates the Veteran for these psychiatric and cognitive symptoms. See 38 C.F.R. § 4.14 (The evaluation of the same disability under various diagnoses is to be avoided.). There are no remaining psychiatric symptoms outside of these diagnoses which have not already been granted service connection. The Board therefore finds that the Veteran does not have a current disability related to residuals of an in-service traumatic brain injury at any time during the pendency of the claim, or at any time prior to the filing of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain, 21 Vet. App. 319, 321 (2007). The preponderance of the competent, probative medical evidence is against finding that the Veteran was diagnosed with a traumatic brain injury in service or at any time afterwards, or that he currently has any residuals medically attributed to a traumatic brain injury. Accordingly, the Veteran’s lay statements are greatly outweighed by the medical evidence of record, and the claim is denied. The Board has again considered the benefit of the doubt rule, but the preponderance of evidence is against the claim. See Gilbert, 1 Vet. App. 49. Bilateral Upper and Lower Extremity Peripheral Neuropathy The Veteran testified in January 2016 that he had leg tingling and cramps, as well as similar symptoms and pain in his arms. He believes that these symptoms are related to the bulging discs in his vertebrae. The Veteran is service connected for a disc bulge at L3-L4 with facet hypertrophic changes, a disc bulge at L4-L5 with midline disc herniation, and for a L5-S1 congenital smaller disc. He is also service connected for left and right lower extremity radiculopathy associated with his lumbar spine disorder. Although the Veteran has already been granted service connection for right and left lower extremity radiculopathy, the claimant maintains that he should also be service connected for bilateral upper and lower extremity peripheral neuropathy secondary to his service-connected lumbar disc bulge. The Board has reviewed all of the evidence of record, and finds that the preponderance of the probative medical evidence is against finding that the Veteran has a current diagnosis of upper extremity peripheral neuropathy, and his lower extremity neuropathy symptoms are already compensated under the grant of service connection for right and left lower extremity radiculopathy. The Veteran’s service treatment records show that in October 2007, he was diagnosed with chronic left lower extremity radiculopathy. In June 2008, the Veteran reported having numbness or tingling and foot trouble, and the explanation stated that there was left leg numbness running down from his back. The Veteran’s VA and private treatment records show occasional complaints related to lower extremity pain and numbness. An October 2007 private evaluation found electrophysiologic evidence of chronic left L5 radiculopathy. In July 2009, the Veteran reported having radiating pain and numbness in his lower extremities. In April 2013, the Veteran had decreased sensation in his bilateral legs. The Veteran has attended numerous VA examinations to assess his back disability and its associated radiculopathy. At an April 2009 VA examination, peripheral pulses were normal, and the Veteran had left leg radiculopathy, but no other neurological abnormality in the extremities. At an August 2009 VA examination, the Veteran also reported left leg numbness, and he was found to have left leg radiculopathy. At a September 2009 VA examination, the Veteran had left leg numbness and pain. Neurological evaluation found no history of paralysis, weakness, paresthesias, or numbness other than in the left leg. There was no sensory or motor loss. A September 2011 medical opinion found that the Veteran’s reflexes and motor function were normal, but he had right and left leg radiculopathy which was related to his service-connected lumbar spine disability. A March 2012 VA examination diagnosed the Veteran with right and left lumbar radiculopathy. There were no other neurological abnormalities. A May 2014 VA examination found moderate pain and numbness in the left lower extremity, and the Veteran was diagnosed with moderate left lower extremity radiculopathy. There were no symptoms found in the right lower extremity. A September 2018 VA examination found that the Veteran had bilateral sciatic neuropathy. The examiner found moderate intermittent pain, paresthesias/dysesthesias, and lower extremity numbness. There were no upper extremity neurological symptoms. The nerves of the upper arms were all found to be normal. The examiner also opined that the Veteran had neuropathy of the sciatic nerve, and that this condition was his bilateral lower extremity radiculopathy. The examiner explained that the radiculopathy behaves as a neuropathy, and that the symptoms cannot be separate from each other as they are basically the same nerve and same nerve root. The Board therefore finds that while there is extensive evidence indicating that the Veteran has bilateral lower extremity radiculopathy, there is no medical evidence demonstrating that he has upper extremity peripheral neuropathy. The Veteran has been evaluated at many VA examinations, and he has never been found to have any radiculopathy or neuropathy in his upper extremities. The September 2018 VA examination specifically noted that there was no pain, paresthesias/dysesthesias, or numbness in the upper extremities. The upper extremities were evaluated as normal. There are no conflicting medical opinions which indicate that the Veteran has ever been found to have upper extremity peripheral neuropathy, and no indication in his VA, private, or service treatment records of any upper extremity peripheral neuropathy symptoms. The Board acknowledges the Veteran’s reports of having occasional pain in his upper extremities, and notes that he has also received VA treatment for nonservice-connected right shoulder and hand disorders. While the Veteran may believe that he has had some upper extremity pain which was caused by peripheral neuropathy related to his back disorder, as was discussed above, the claimant is a layperson, and is not competent to diagnose a complex medical disorder such as peripheral neuropathy. See Layno, 6 Vet. App. at 470. His lay assertions are outweighed by the findings of competent medical professionals, such as the September 2018 VA examiner, who found that the Veteran did not have any neurological symptoms in his upper extremities. The Board therefore finds that the preponderance of the competent, probative medical evidence demonstrates that the Veteran does not have a current disability of upper extremity peripheral neuropathy at any time during the pendency of the claim, or at any time prior to the filing of the claim. See Romanowsky, 26 Vet. App. at 294. The claim of entitlement to service connection for upper extremity peripheral neuropathy is denied. The Board is also unable to grant separate service connection for bilateral lower extremity peripheral neuropathy, because these symptoms have already been assigned service connection, and such a grant would constitute pyramiding. See 38 C.F.R. § 4.14. The Veteran has already been granted entitlement to service connection for right and left lower extremity radiculopathy, with each limb currently assigned a 20 percent rating. The September 2018 VA examiner explained that the Veteran’s lower extremity radiculopathy is a type of peripheral neuropathy, and the symptoms already being compensated as radiculopathy would be the same symptoms considered for a diagnosis of peripheral neuropathy. As a matter of law a veteran cannot be compensated twice for the same symptomatology and the varying diagnoses of record do not account for distinct symptoms or resulting impairment. Hence, a separate grant of service connection for lower extremity peripheral neuropathy is not warranted. See38 U.S.C. § 1155; 38 C.F.R. § 4.14; Brady v. Brown, 4 Vet. App. 203, 206 (1993). The Board is unable to grant entitlement to service connection for lower extremity peripheral neuropathy, as these symptoms are already contemplated by the existing grant of service connection for lower extremity radiculopathy. The claim is denied. The Board has considered the benefit of the doubt rule, but the preponderance of evidence is against the claims, and it is not applicable. See Gilbert, 1 Vet. App. 49. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mary E. Rude, Counsel