Citation Nr: 18157575 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-44 226 DATE: December 13, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for bilateral sensorineural hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, as due to exposure to herbicide agents, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as due to exposure to herbicide agents, is denied. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era, and he is presumed to have been exposed to Agent Orange or other herbicide agents. 2. The Veteran does not have a diagnosis of PTSD. 3. The Veteran’s current hearing loss disability did not have its onset during service, did not manifest within one year of separation from active service, and was not caused by active service. 4. The Veteran’s tinnitus did not have its onset during service and was not caused by his active service. 5. Peripheral neuropathy of the right lower extremity did not have its onset during active service, did not manifest within one year of separation from service, and is not etiologically related to military service, to include as due to exposure to herbicide agents. 6. Peripheral neuropathy of the left lower extremity did not have its onset during active service, did not manifest within one year of separation from service, and is not etiologically related to military service, to include as due to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD have not all been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for bilateral hearing loss have not all been met. 38 U.S.C. §§ 1112, 1113, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for tinnitus have not all been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 4. The criteria for service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313. 5. The criteria for service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to November 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, 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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A “veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(d)(6)(i). The presumption requires the Veteran’s actual presence in Vietnam, inclusive of the inland waterways of Vietnam. Haas v. Peake, 525 F.3d 1168 (2008). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases include chloracne and early onset peripheral neuropathy. 38 C.F.R. § 3.309(e). The record indicates that the Veteran served in the Republic of Vietnam; thus, his exposure to Agent Orange is presumed. Service connection for chloracne scars has been established on a presumptive basis as due to Agent Orange exposure. Early onset peripheral neuropathy is also presumed to be due to in-service Agent Orange exposure under 38 C.F.R. § 3.309(e), but only if it is manifested to a degree of 10 percent or more within one year of the last date of in-service exposure. 38 C.F.R. § 3.307(a)(6)(ii). 1. Entitlement to service connection for PTSD The Veteran contends that his claimed PTSD is related to active service. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). VA treatment records from August 2013 include a medical opinion disability benefits questionnaire (DBQ) and examination report for mental disorders. The examination report indicates that the Veteran does not have a mental disorder nor a diagnosis of PTSD that conforms to DSM-IV criteria, that his symptoms do not meet the criteria for PTSD, and he does not have a mental disorder that conforms with the criteria. The examiner remarked that the Veteran was exposed to moderate levels of combat, resulting in feelings of fear, horror and helplessness, during service. He stated that result of the current examination revealed little evidence of signs and symptoms of PTSD, but not to the extent required for diagnosing him with the disorder. The examiner opined that the Veteran’s PTSD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. His rationale was that based on clinical experience and expertise, review of the claims file and available records, and examination of the Veteran, who presented credibly and consistently in treatment records, clinical interview and on trauma checklist, it is less likely than not that he meets the criteria for a diagnosis of PTSD that is caused by or the result of his exposure to combat stressors experienced while serving in Vietnam and to his overall fear of hostile military and terrorist activities. In February 2016, the Veteran testified before a decision review officer (DRO) at the regional office regarding service connection for PTSD. The transcript indicates that the Veteran was hospitalized for depression in Michigan around 1980. It indicates that a sergeant went on guard duty for him one night, and that sergeant disappeared. His wife testified that the Veteran wrote home a lot about huge spiders that really bothered him. She testified that they got married before he went to the service and that since his return he is more distant, depressed, and would have a propensity to violence sometimes. She stated that “sometimes he would watch shows, especially shows on Vietnam and just sit and cry” and that “it was harder to get through that” and that he had kept a barrier. She indicated that the Veteran occasionally has nightmares and sleeping trouble and that he screams out at night. She stated that she does not think he likes going to public events or to be around a lot of people and that “he seems to avoid that at most costs.” The Board acknowledges the Veteran’s contention that he has PTSD related to service. However, while the Veteran is competent to report his symptoms, the record does not indicate that the Veteran nor his spouse possess the requisite knowledge to provide a diagnosis of any psychiatric disorder. In view of the foregoing, the Board must conclude that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for PTSD. As the Board finds that the requirement of a current disability has not been met, the Board need not address the other elements of service connection. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The preponderance of the evidence is against the claim, thus the benefit-of-the-doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for bilateral sensorineural hearing loss 3. Entitlement to service connection for tinnitus The Veteran contends that he developed bilateral hearing loss and tinnitus due to exposure to noise during service. In considering the evidence of record, the Board concludes that the Veteran is not entitled to service connection for bilateral hearing loss or tinnitus. A hearing loss disability is defined for VA compensation purposes with regard to audiology testing involving puretone frequency thresholds and speech discrimination criteria. 38 C.F.R. § 3.385. The August 2013 DBQ indicates that the Veteran has a diagnosis of tinnitus and of sensorineural hearing loss in the right and left ear and the record shows that this is consistent with § 3.385. Thus, the first element of service connection is satisfied. STRs do not indicate any complaints, treatment, symptoms, or diagnosis of any hearing related problems. In a May 2013 statement in support of claim, the Veteran indicated that he received a hearing test when he entered service but did not receive a hearing test at separation. He indicated that his hearing loss began during service and has been getting progressively worse since that time and that his tinnitus began in service and has continued since that time. He indicated that he was exposed to acoustic trauma during service to include jet turbine engines, small arms fire, artillery fire, bombs, reciprocal engines, rocket fire, rotary wing aircraft, and power hand tools. He indicated that since service he has been exposed to power hand tools. In the August 2013 hearing loss and tinnitus DBQ, it indicates that the Veteran had sensorineural hearing loss of the right and left ear. The examiner opined that the Veteran’s hearing loss is not at least as likely as not caused by or a result of an event in military service. The rationale was that service records indicated normal hearing on ETS examination on November 13, 1970, and that the report of medical history was negative for dizziness, ENT trouble, running ears or hearing loss. The report indicates that the chief complaint was bilateral hearing loss since service, and that he was first diagnosed with a hearing problem in 2006. The examiner opined that bilateral hearing loss is not at least as likely as not due to military noise exposure or military service. The rationale was that the Veteran entered and exited military service with clinically normal hearing and that service medical records were silent for complaints of a hearing loss condition. He noted that the Veteran filed a claim for hearing loss and tinnitus in 2012 and alleged that his hearing loss is due to combat noise experiences. The examiner conceded a high probability of noise exposure but that separation examination showed no significant shift in hearing. The examiner explained that the Veteran worked as a mechanic for less than 3 years in military service and for over 40 years in civilian life. He stated that the degree and configuration of hearing loss are highly dependent on duration of noise and intensity of that noise and noted that there is a higher probability of noise exposure for this Veteran in his vocation as a mechanic for over 40 years. He stated that the Veteran reported two incidents of acoustic trauma during military service with temporary/sudden hearing change with tinnitus, and the examiner indicated that this is a common complaint as noted by noise research. He stated that “according to landmark studies on military noise exposure (IOM 2005) and other noise research, noise induced hearing loss is neither late onset or cumulative.” He stated that “hazardous noise causes immediate effects on hearing that are usually temporary and may include tinnitus” and stated that “chronicity and continuity of care could not be established for this Veteran.” Regarding tinnitus, the August 2013 report indicates bilateral tinnitus described as crickets in ears, noticeable since Vietnam. It indicates that the Veteran’s tinnitus is at least as likely as not a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. The examiner opined that it is less likely than not caused by or a result of military noise exposure. His rationale was that SMRs were silent for complaints of hearing loss or tinnitus. The examiner noted that the Veteran reported one rocket attack during combat and a simulated explosion during training that resulted in temporary ringing in ears and hearing loss for an hour. In addition, hazardous noise causes immediate effects on hearing that are usually temporary and may include tinnitus. The examiner noted that the etiology of tinnitus is more likely related to hearing loss condition caused by vocational and avocational noise exposure, unrelated to military service. In the February 2016 hearing, the Veteran testified that he did not have a hearing test upon separation from service and that while he was in service he was exposed to noises including frequent rocket attacks and that on one occasion he was “blown off [his] feet and knocked down” and could not stop the ringing in his ears for a couple of hours. The Veteran testified that after service he was a mechanic, and then whenever they used louder tools, they used hearing protection, but that during service he did not have any ear protection. The Veteran’s representative indicated that the Veteran’s tinnitus started in the military and that when he entered service his ears were not ringing. He stated that his tinnitus is all the time and that it is “real loud when [it is] quiet.” The witness at the hearing indicated that the Veteran has “had that as long as [she] can remember.” The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board finds the August 2013 VA examiner’s opinion to be the most probative evidence of record as to whether the Veteran’s current hearing loss or tinnitus is related to the Veteran’s active service. The examiner was fully aware of the Veteran’s military noise exposure and any history of hearing loss or tinnitus, as noted in the record, and based the opinion on the evidence and examination of the Veteran. Thus, the examination was adequate. Based on the examiner’s opinion, the Board cannot make a finding that the Veteran’s hearing loss or tinnitus is at least as likely as not related to service or the result of acoustic trauma in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Veteran and his wife’s statements attributing his current hearing loss to in-service noise exposure. To the extent the Veteran has asserted that he has had hearing problems or tinnitus since service, he is competent to do so. However, his statements are not of significant probative value and evidence unfavorable to a finding that he had hearing loss present ever since service is more probative. STRs do not indicate that the Veteran reported hearing problems or tinnitus during service, and the earliest post-service medical evidence of record reflecting the Veteran’s complaints of hearing problems was over 35 years after service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board finds it reasonable to infer that if the Veteran had significant symptoms for the many years after service, he would have sought treatment for his hearing problems closer in time to his separation from service. Accordingly, because of the lack of any symptoms or disability during service and for many years following service, the Board does not find the lay statements submitted regarding hearing loss and tinnitus since service to be credible. Thus, the Board finds that the statements from the Veteran and his wife as to the onset and continuity of symptoms are of no probative value. While the Veteran has stated his belief that his hearing loss and tinnitus are caused by acoustic trauma in service, the question of an actual association between these conditions, diagnosed many years after service, and his military noise exposure is a medical question too complex for a lay person to competently address. See 38 C.F.R. § 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not demonstrated expertise in this area. Given the above, the Board finds that the most probative evidence of record shows that the Veteran’s bilateral hearing disability and tinnitus are not due to an incident during service and did not begin in service or manifest within a year of separation from active service. Based on the foregoing, the preponderance of evidence is against a finding that the Veteran’s current bilateral hearing loss or tinnitus is at least as likely as not etiologically related to his military noise exposure. Thus, there is no reasonable doubt to be resolved in the Veteran’s favor, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity, as due to exposure to herbicide agents 5. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as due to exposure to herbicide agents The Veteran contends that his peripheral neuropathy of the right lower extremity and left lower extremity are related to service, as due to exposure to herbicide agents. In the August 2016 VA Form 9, the Veteran, stated that his neuropathy is a direct consequence of those exposures. Although the Veteran’s service in Vietnam is documented, and therefore, his exposure to herbicides is presumed, there is no competent evidence that he was diagnosed with “early-onset” peripheral neuropathy which appeared anytime near his last exposure to Agent Orange. See 38 C.F.R. § 3.309(e), Note 2. Indeed, the evidence shows that his peripheral neuropathy appeared many years after separation from active service. Therefore, service connection is not warranted based upon the Veteran’s presumed exposure to herbicides during active service or on the basis of a chronic disease under 38 C.F.R. §§ 3.307, 3.309(a), and 3.303(b). Notwithstanding the foregoing presumption provisions, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disability was in fact causally linked to such exposure. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 162-64 (1997). Service treatment records (STRs) are negative for complaints, symptoms, treatment, or diagnosis of peripheral neuropathy. In February 2016, the Veteran testified at the RO regarding service connection for peripheral neuropathy of the bilateral upper and lower extremities. The Veteran indicated that he has tingling and pain in his feet, that they were getting numb, and it was bad enough that he could not continue with his profession. He stated that his feet were hurting, had weakness, could not climb, and could not maneuver around. He stated that he retired in September 2011. He stated that when he was 62, after he retired, he got Social Security and that he filed for Social Security Disability and that they awarded it to him. The Veteran indicated that no one has ever related his back injury prior to service with his current condition. He stated that they say that it is “not the spine because it…it’s in the records there that there was no restrict on the spinal cord.” He indicated that he has burning, shooting pains in his feet and that they are “turned into blocks of wood getting numb.” The representative stated that he was “willing to call that diabetic neuropathy” and that “all we need is the diabetes diagnosis.” The Veteran stated that he first noticed the problem in his feet and legs in the early 1970’s but did not seek treatment. A private treatment record from January 4, 2005 indicates that the Veteran’s doctor stated that he reviewed the Veteran’s MRI of the cervical, thoracic, and lumbar spinal segments. The examiner stated that the changes in the cord at T10 are the best explanation for his lower extremity symptoms but that the etiology is not clear. The record indicates that the Veteran recalled a motorcycle accident in 1988 with brief lower extremity symptoms but those completely cleared thereafter; the current symptoms began to bother him after the year 2000. A January 11, 2005 record indicates that the Veteran’s doctor stated that a spinal arteriogram confirmed that the Veteran does have a spinal cord AVM (probably an AV fistula), and that it would explain his gradual loss of lower spinal cord function over the last few years. A September 3, 2013 record indicates discussion of various symptoms including somewhat chronic low backache, occasional crampy discomfort in his legs, and imbalance. He noted that the symptoms have evolved over many years and that his lower extremity paresthesias never cleared but has been essentially stable. He stated that on examination today he is overweight with bilateral lower extremity swelling. He stated that he suspects that the Veteran’s symptoms are multifactorial and that the paresthesias might in part be a residual effect of the ischemic changes brought on by the dural AV fistula before it was treated. Private treatment records from June 12, 2015 indicate that the Veteran’s physician previously did an electrodiagnostic testing on the Veteran in April 2013 with the findings consistent with mild peripheral neuropathy. The history dated back around 2003 when he had symptoms of weakness and numbness on both lower extremities and subsequently further work-up showed spinal arteriovenous malformation. It indicates that he had embolization and practically the arteriovenous malformation is obliterated and that he has also experienced back pain which radiates to the lower extremities. A nerve conduction report from April 30, 2013 indicates an impression that “not findings consistent with mild peripheral neuropathy.” The Veteran filed his claim for numbness bilateral lower extremities in October 2012. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran is competent to describe physical symptoms, such as tingling, pain, and numbness; however, he is not competent to diagnose his symptoms or attribute them to service or to exposure to herbicide agents. The issue is medically complex and determinations as to etiology cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77, n.4 (Fed. Cir. 2007); see also Barr, 21 Vet. App. at 309. Instead, the determination must be made by a medical professional with appropriate expertise. Id. The origin or cause of the Veteran’s peripheral neuropathy is not a simple question within the realm of knowledge of a layperson and cannot be determined based on mere personal observation by a lay person, thus, the Veteran’s lay assertion is not competent to establish a nexus. Jandreau, 492 F.3d at 1376-77; see also Davidson, 581 F.3d at 1316. In this regard, the medical evidence in the Veteran’s STRs is unfavorable to the claim as there are not no complaints of, and he was not treated for, peripheral neuropathy of the right or left lower extremities, at any time while in service. In fact, symptoms of peripheral neuropathy of the lower extremities were not manifested until 2000 at the earliest, 30 years after his discharge from service. This intervening lapse of many years between his separation from military service and the first manifestation for this claimed disorder is probative evidence against his claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board concludes that the lack of any in-service treatment, the lapse between the Veteran’s separation from active duty and his first complaints of peripheral neuropathy, and the delay in filing his claim weigh against a finding that his peripheral neuropathy had its onset during service or within a year of separation from service. Moreover, no medical professional has suggested that the Veteran’s peripheral neuropathy of the lower extremities is related to his service. The Veteran, himself, has only contended that his peripheral neuropathy is a result of exposure to herbicide agents in service and has not argued that it is related to service on any other basis. Although peripheral neuropathy is presumed secondary to Agent Orange, it must be present and diagnosed within a year of separation. There is no evidence that the Veteran’s condition began within that time period. The Board has considered the Veteran’s lay statements, but finds the STRs, medical records, and the delay in filing claims to be highly probative. In weighing the medical and lay evidence of record, the Board finds that the Veteran’s contention is outweighed by the competent and probative evidence of record. (Continued on the next page)   Therefore, the Board concludes that the preponderance of the evidence shows that the Veteran’s claimed peripheral neuropathy of the right and left lower extremities is not causally related to his active service or any incident therein, including his exposure to herbicide agents. As the preponderance of the evidence is against the Veteran’s claim of service connection for peripheral neuropathy of the right and left lower extremities, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Labi, Associate Counsel