Citation Nr: 18157297 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 11-00 526 DATE: December 12, 2018 ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper and right lower extremities, to include as secondary to diabetes mellitus type II, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to diabetes mellitus type II, is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional neurologic disability, as a result of VA surgeries in March 2009 is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability, claimed as impairment of bowel control, as a result of VA care provided in March 2009 is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The probative medical evidence of record has not shown that the Veteran has any diagnosed peripheral neuropathy of the bilateral upper or right lower extremities at any time during the period of appeal. 2. The probative medical evidence of record has shown that the Veteran’s left lower extremity sciatic neuropathy was not caused by or incurred in military service and was not caused or aggravated beyond its natural progression by the Veteran’s diabetes mellitus or any other service-connected disability. 3. The Veteran’s bilateral hearing loss has been manifested by auditory acuity levels of no worse than Level II impairment in the right ear and Level II impairment in the left ear. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the bilateral upper and right lower extremities was not caused by or incurred in active service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. Left lower extremity sciatic neuropathy was not caused by or incurred in active service. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 3. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2008 and February 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The April 2008 rating decision granted service connection for bilateral hearing loss and assigned a noncompensable evaluation. The April 2008 rating decision also denied service connection for peripheral neuropathy of the upper and lower extremities. In February 2010, the RO denied entitlement to compensation under 38 U.S.C. § 1151. In April 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In July 2015, the Board remanded the appeal for additional development and the issue of entitlement to a TDIU was inferred in accordance with the United States Court of Appeals for Veterans Claims (Court) decision in Rice v. Shinseki, 22 Vet. App. 447 (2009). That development having been completed, these claims are once again before the Board. 1. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Service connection may also be warranted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Generally, the evidence 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. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection for early onset peripheral neuropathy (i.e., manifested to a degree of 10 percent within one year of last exposure to an herbicide agent) is presumed service connected for those who served in Vietnam. 38 C.F.R. §§ 3.307, 3.309. In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Peripheral Neuropathy of the Bilateral Upper and Right Lower Extremities The Veteran claims that he currently suffers from peripheral neuropathy of the bilateral upper and right lower extremities, which he attributes to his service-connected diabetes mellitus type II. The Veteran testified that he was diagnosed with these conditions by his doctor in March 2009. A review of the Veteran’s service treatment records fails to reveal any discussion of symptoms or diagnoses of peripheral neuropathies. A review of the Veteran’s post-service outpatient treatment records also fails to show any discussion of symptoms or diagnoses of peripheral neuropathies involving the bilateral upper or right lower extremities. Although it is noted in an April 2009 treatment note that the Veteran may have had subclinical peripheral neuropathy following surgery in March 2009, this appears to have been only in reference to the left lower extremity. An additional note in April 2009 showed that there was an indication of polyneuropathy that could be related to mild diabetes or B12 deficiency, but no confirmation of such diagnosis. In June 2009, a treatment note showed an indication of neuropathy in the bilateral feet and left arm, but again there was no confirmation of such diagnosis. The Veteran was provided with a VA examination in February 2010, which noted the above history, but gave more attention to the Veteran’s left lower extremity. The Veteran was provided with an additional VA examination in December 2016. At that time, it was established there were no diagnosed neurological conditions of the upper and right lower extremities. The threshold requirement for the granting of service connection is evidence of a current disability. Here, the totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of neuropathy of bilateral upper and right lower extremities during the relevant period on appeal. Although such a disability was initially suspected, it is now established no such disability is present in these extremities. Accordingly, service connection is not warranted. Neuropathy of the Left Lower Extremity The Veteran claims that he currently suffers from peripheral neuropathy of the left lower extremity. In this regard, the Veteran has attributed this to his service-connected diabetes mellitus type II. The Veteran testified that he was diagnosed with this condition by his doctor in March 2009. A review of the Veteran’s service treatment records does not reflect any discussion of symptoms or diagnoses of peripheral neuropathies. A review of the Veteran’s post-service outpatient treatment records shows that the Veteran has been diagnosed and followed for neuropathy in his left lower extremity since 2009. The diagnosis is left lower sciatic neuropathy, which when examined for VA purposes in December 2016, the examiner concluded it was less likely than not caused by or incurred in military service, as there is no support in the existing evidence or medical literature that the Veteran’s condition developed as a result of herbicide exposure or diabetes mellitus type II. Additionally, the examiner opined that there was no indication that the Veteran’s neuropathy had been aggravated beyond its natural progression, as treatment records from the Veteran’s 2010 VA examination to present have shown improvement as opposed to any aggravation or worsening. While the Veteran may believe the claimed condition developed as a result of his exposure to herbicides in service, he is not shown competent to provide a probative opinion on the subject. Because the condition was not shown for many years after service and competent medical evidence fails to link it to service, a basis upon which to establish service connection has not been presented. 2. Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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). Where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's bilateral hearing loss is currently rated as 0 percent disabling under the General Rating Formula for Impairment of Auditory Acuity. 38 C.F.R. § 4.85, Diagnostic Code 6100. The severity of hearing loss is determined by comparison of audiometric test results with specific criteria. Id. Ratings of bilateral defective hearing range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. Id. The Schedule allows for audiometric test results to be translated into a numeric designation ranging from Level I to Level XI, for profound deafness, to rate the degree of disability from bilateral service-connected defective hearing. Id. The ratings derived from the Schedule are intended to make proper allowance for improvement by hearing aids. Id. In certain situations, the rating criteria provide for rating exceptional patterns of hearing impairment. If the puretone threshold is greater than 55 decibels at each of four specified frequencies (1000, 2000, 3000, and 4000 Hertz), VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral and then elevate that numeral to the next highest numeral for consideration. Each ear is evaluated separately. 38 C.F.R. § 4.86. A review of the Veteran’s service treatment records shows that he had hearing within normal limits on both entry and exit auditory examinations. A review of private treatment records show that the Veteran has been treated for bilateral hearing loss and tinnitus since leaving military service. The Veteran was provided with a VA examination in October 2007. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 30 30 35 LEFT 20 20 30 30 40 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. Audiogram revealed sensorineural hearing loss bilaterally. The Veteran was provided with an additional VA examination in April 2009. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 40 30 LEFT 20 25 30 35 40 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. Audiogram revealed sensorineural hearing loss bilaterally. The Veteran was provided with an additional VA examination in October 2010. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 40 30 LEFT 15 25 30 30 35 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. Audiogram revealed sensorineural hearing loss bilaterally. The Veteran was provided with an additional VA examination in December 2016. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 45 50 55 55 LEFT 30 40 50 50 55 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and 88 percent in the left ear. Audiogram revealed sensorineural hearing loss bilaterally. In regard to functional impairment, it was noted that the Veteran has difficulty understanding speech in the presence of background noise and he has trouble hearing speech clearly at church. The Veteran was wearing two VA issued hearing aids. The Veteran submitted the results of a private examination conducted in April 2017. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 30 35 40 LEFT 30 30 35 45 50 A controlled speech discrimination test (Maryland CNC) was not included. No other audiometric testing which included the required values in accordance with applicable rating criteria were of record. Based on the above, the Board finds that the Veteran's bilateral hearing loss only meets the criteria for a 0 percent evaluation throughout the appeals period. At the outset, the Board notes that a valid hearing examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and include a controlled speech discrimination test (Maryland CNC). See 38 C.F.R. § 4.85 (a). The April 2017 audiometric report did not indicate whether it was performed by a state-licensed audiologist and controlled speech discrimination tests were not included. As the provider did not certify whether the use of the speech discrimination test was not appropriate in the Veteran's case, the Board cannot rate the Veteran's hearing loss under Table Via (using the average puretone threshold readings alone), in accordance with 38 C.F.R. § 4.85 (c). In short, the April 2017 private examination is not adequate for VA rating purposes. VA examinations conducted prior to December 2016, show Level I hearing in each ear under Table VI, which results in a non-compensable rating under Table VII. The December 2016 VA examination report shows Level II impairment in the right ear and Level II impairment in the left ear under Table VI, which when combined under Table VII, yields a 0 percent rating. Even considering the April 2017 examination report which shows a puretone threshold average of 31 decibels in the right ear, and a puretone threshold average was 40 decibels in the left ear, only Level I hearing using Table VIA is seen. This likewise supports only a non-compensable rating. The Board is sympathetic to the Veteran's complaints related to his hearing loss, but finds that there is no schedular basis for granting a compensable rating after reviewing the valid audiometric testing during the appeal period. The evidence of record does not warrant a compensable rating for the Veteran's hearing loss at any time during the period pertinent to this appeal. 38 U.S.C. § 5110 (2012); see also Fenderson, 12 Vet. App. at 126. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND 1. Compensation under § 1151, left lower extremity neurologic disability Under certain circumstances, 38 U.S.C. § 1151 (a) grants compensation for qualifying disabilities to veterans in the same manner as if such disability were service connected. See also 38 C.F.R. § 3.361 (2017). Specifically, the disability must be caused by hospital care, medical or surgical treatment, or examination furnished the veteran by VA, and the proximate cause of the disability must be (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. See 38 C.F.R. § 3.361 (d)(1) (2017). Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is, in each claim, to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361 (d)(2). Second, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). In determining whether disability resulted from disease or injury or aggravation of an existing disease or injury suffered as a result of VA care, the evidence must show actual causation rather than coincidental occurrence. 38 C.F.R. § 3.361 (c)(1). Finally, the disability must not be the result of the veteran’s failure to follow properly given medical instructions. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301(c)(3). In this case, while it appears the Veteran no longer has foot drop, which was the initial indication an additional disability was incurred following the 2009 VA treatment, he was shown to have left lower extremity sciatic neuropathy when examined for VA purposes in December 2016, which the examiner appears to have linked with the Veteran’s VA treatment. However, the examiner did not address whether carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event that was not reasonably foreseeable during the Veteran’s March 2009 surgery is responsible for the Veteran’s left lower extremity neurological disability. Such an opinion should be sought. 2. Compensation under § 1151 for Bowel Incontinence The record appears to indicate the Veteran has bowel incontinence which appears to have been a medically anticipated outcome of the surgery he had in March 2009, (drainage of perirectal abscess and wide debridement of necrotic perirectal tissue). The opinions on record on the question of entitlement under 38 U.S.C. § 1151, appear to focus on the care given for the surgery itself, whereas the Board, in its 2015 Remand, sought an opinion addressing whether care provided at a walk-in clinic, (apparently on March 13, 2009), several days prior to the surgery, was appropriate. Such an opinion remains needed. TDIU As to the issue of entitlement to a TDIU, the claim being remanded herein is inextricably intertwined with the Veteran’s claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The issue on remand must be addressed by the agency of original jurisdiction before the Board renders a decision on the TDIU, as such outcome will affect whether the Veteran’s entitlement is thus warranted. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c) (2017); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The matters are REMANDED for the following action: 1. The Veteran should be requested to identify any additional records of treatment he wishes considered in this appeal, which records should be sought. 2. Associate with the file, copies of records of any VA outpatient treatment the Veteran received between March 1, 2009 and March 17, 2009 3. Thereafter, return the Veteran’s claims file to the VA examiner who conducted the December 2016 VA examination for the claimed left lower extremity neurological disability. If that examiner is no longer available, the Veteran’s claims file should be forwarded to a VA examiner of like skill and qualification. The claims file must be made available to the VA examiner for review. The examiner is asked to respond to the following: Is the currently-diagnosed left lower extremity sciatic neuropathy due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical intervention in March 2009. The examiner also should give an opinion as to whether the left lower extremity sciatic neuropathy was an event not reasonably foreseeable. An explanation should be provided to support all opinions expressed. 4. The RO should also return the Veteran’s claims file to the VA examiner who conducted the December 2012 VA examination for the claimed bowel incontinence. If that examiner is no longer willing or available to respond, the Veteran’s claims file should be forwarded to a VA examiner of like skill and qualification. The examiner is asked to specifically address the VA care furnished to the Veteran during a VA walk-in clinic visit in March 2009, prior to his March 17, 2009 hospital admission and whether appropriate care was provided, which could have avoided the subsequent hospitalization and its consequences. The examiner is asked to respond to the following: (a) Given the symptoms reported by the Veteran at the time of his March 2009 VA walk-in clinic visit, (which apparently occurred March 13, 2009) would the reasonable standard of care have included performing a rectal examination? (b) Is the currently-diagnosed impairment of rectal sphincter control due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing walk-in clinic care in March 2009, and were any resulting medical complications not reasonably foreseeable? An explanation should be provided to support all opinions expressed. 5. After completing the above action, and any other development, the claim must be re-adjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dodd, Counsel