Citation Nr: 18122011 Decision Date: 07/27/18 Archive Date: 07/27/18 DOCKET NO. 14-26 931 DATE: July 27, 2018 ORDER Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities is granted. Entitlement to service connection for peripheral neuropathy of bilateral lower extremities is granted. Entitlement to service connection for peripheral neuropathy of bilateral upper extremities is denied. Entitlement to a compensable initial rating prior to August 8, 2016, and a rating in excess of 10 percent thereafter, for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s current hypertension was diagnosed by a private physician within one year of separating from active duty. 2. The Veteran’s peripheral neuropathy of the lower extremities was incurred in service and has been ongoing since. 3. The Veteran does not have a current diagnosis of peripheral neuropathy of the upper extremities. 4. Prior to August 8, 2016, the Veteran’s bilateral hearing loss was manifested at worst by Level I hearing in both ears. 5. From August 8, 2016, the Veteran’s bilateral hearing loss was manifested at worst by Level IV hearing in both ears. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria are met to establish service connection for hypertension. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. 2. The criteria for service connection for peripheral neuropathy of bilateral lower extremities have been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 3. The criteria for entitlement to service connection for peripheral neuropathy of bilateral upper extremities have not been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 4. The criteria for a compensable rating prior to August 8, 2016, and a rating in excess of 10 percent thereafter, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, 4.86 Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from March 1969 to November 1969, January 1991 to June 1991, August 2004 to September 2005, May 2008 to October 2008, and November 2008 to January 2010. He is also a Gulf War Veteran with service in the Southwest Asia theater of operations from February 1991 to June 1991 and September 2004 to August 2005. He testified at a hearing before the undersigned Veterans Law Judge in April 2018; a transcript of the hearing is associated with the record. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for hypertension (HTN), to include as secondary to service-connected disabilities. The Veteran is seeking entitlement to service connection for hypertension, alleging that his blood pressure was found to be high during his exit examination in 2005, and he was diagnosed by a private physician in the year following. Regarding the first element of service connection, the Veteran has a current diagnosis of hypertension per treatment records and VA examinations. Service-treatment records do not reflect elevated blood pressure readings; however, the Veteran testified during his Board hearing that he was diagnosed with hypertension and placed on medication by a private physician in 2006. Also during the hearing, the Veteran reported that he felt his posttraumatic stress disorder (PTSD) was an underlying cause of his high blood pressure. The Veteran was afforded a VA examination for hypertension in August 2012 and the examiner confirmed the diagnosis. His treatment plan consisted of continuous use of an ace inhibitor. No opinion regarding etiology was offered. The next VA exam for hypertension was conducted in January 2013, and opined that hypertension had a clear and specific etiology and diagnosis not related to a specific exposure event experienced by the Veteran during service. The examiner noted that his condition began in 2005, and he was treated with hypotensive medication, which he continues. Overall, the examiner found that his hypertension was not aggravated by service. Resolving all doubt in favor of the Veteran, the Board finds that his hypertension began in 2005 and was formerly diagnosed in 2006. This is within the one-year timeframe during which presumptive service connection applies under 38 C.F.R. § 3.309(a) because hypertension as a “chronic disease.” The Veteran credibly testified as to experiencing high blood pressure upon release from service in 2005 and being diagnosed by a private physician in 2006. There is clear linkage to service and a justifiably found, legitimate pattern of continuity of symptomatology based on treatment. See 38 C.F.R. § 3.303(b). Although further medical examination might provide more information, there is enough favorable evidence of record. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection are met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for peripheral neuropathy of bilateral, upper extremities. 3. Entitlement to service connection for peripheral neuropathy of bilateral, lower extremities. The Veteran is seeking service connection for peripheral neuropathy of the upper and lower extremities, which he attributes, in part, to his service in the Gulf War. Treatment records show the Veteran was seen in July 2005 for a rash covering his entire body that caused severe itching. The rash lasted for approximately two weeks. Later records show he had good control of his symptoms due to prescribed medication. He was also issued shoe inserts, which were somewhat beneficial. In November 2009, he complained to his primary care about cramps and pains in his lower legs; the physician attempted to rule out if the pains were related to medication. A January 2010 note indicated he had been diagnosed with bilateral foot neuralgia. In April 2011, he was seen by a private physician and complained of numbness in both feet that had been ongoing for six months. Nerve studies and an EMG were performed; the physician indicated the Veteran had moderately, severe sensory motor axonal neuropathy. The Veteran was afforded a Gulf War VA examination in August 2012 and his only complaint was numbness. The examiner found mild numbness in both legs and decreased sensation in both feet and his toes. There was also mild, incomplete paralysis in his anterior tibial nerve. EMG studies showed moderately, severe sensory motor neuropathy in both right and lower extremities. The examiner indicated the Veteran’s sensory motor neuropathy had a clear and specific etiology and diagnosis that was unrelated to a specific exposure event experienced during his service in Southwest Asia. Another VA examination for peripheral nerve conditions was conducted in January 2013, and the Veteran indicated that he was diagnosed and treated for neuropathy in 2009 by a private physician. He stated that he had severe leg cramps, which prompted him to go for an exam. He had intermittent numbness in both legs. On physical examination, the examiner found mild numbness and decreased sensation in both lower extremities. The Veteran also experienced mild, incomplete paralysis in his anterior tibial nerve. The examiner opined that the Veteran’s neuropathy was a diagnosable disease that did not have a clear etiology. He developed the condition in 2009, while on active duty; however, there are no records of any diagnosis. Rather, the diagnosis is based on history provided by the Veteran, in which he reported decreased sensation to his feet and chemical exposure while on active duty. The examiner noted: “If his condition did occur in 2009, as the veteran claims, then the veteran developed the condition while in the service, while being exposed to chemicals, and therefore the veteran’s neuropathy is at least as likely as not not caused by the claimed in-service illness due to exposure of environmental hazards in southwest asia.” In March 2013, the examiner provided an updated opinion regarding the etiology of the Veteran’s neuropathy. The examiner indicated the Veteran’s claimed condition was not incurred in or caused by service, noting: “the veteran was diagnosed with his neuropathy in 2011, outside of the time when he was in the service. He noticed symptoms in 2009. The veteran was deployed to Kuwait from Feb to June 1991 and from Sept 2004 to August 2005 when he was exposed to environmental hazards in southwest asia. After thorough review of the literature on the development of peripheral neuropathy after exposure to the gulf war studies (Eisen et al 2005 – Gulf War Veteran’s Health Cohort) have shown that out to 10 years after being exposed to chemical in the gulf war, veteran’s do not have higher rates of peripheral neuropathy than those not deployed and that there is no evidence that deployment to the gulf war caused chronic peripheral nerve damage that was present 10 years later.” During his Board hearing, the Veteran testified that he touched a white, powdery substance during his deployment to Kuwait and developed a rash, that lasted a week. His uniforms were replaced due to the concern that they were infected with something that caused the rash. He began to lose feeling in his feet about a year later. He went to a private medical facility where they conducted tests and provided treatment; he was put on a nerve pain medication. After review of the evidence, the Board finds that service connection is warranted for peripheral neuropathy of the lower extremities. The record reflects that neuropathy was documented in January 2010 and the Veteran began complaining of pain in his legs and feet in 2009, both of which were during his active duty service. Moreover, the record reflects ongoing symptoms since service. Both VA examiners indicated the Veteran’s neuropathy had a clear diagnosis and specific etiology that was unrelated to any exposure event during service; however, March 2013 opinion indicated that the Veteran was first diagnosed in 2011. The January 2013 examiner indicated that if his condition began in 2009, service connection would be warranted. As noted above, the Veteran first reported symptoms in 2009 and was formally diagnosed in January 2010, during active duty. Therefore, the VA examiners’ opinions have limited probative value. For the foregoing reasons, the preponderance of the evidence is in support the claims of entitlement to service connection for peripheral neuropathy of the lower extremities. The most probative evidence of record reflects that the Veteran lacks a diagnosis of upper extremity neuropathy during the appeals period. Specifically, neither examiner found any decreased sensation or neurological symptoms in his upper extremities. Also, private testing conducted in April 2011, only showed symptoms in his feet and lower legs. Absent the required diagnosis at any time during the appeals period, there is no current disability to attribute to the Veteran’s military service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992.) This decision does not preclude the Veteran from filing again for service connection for peripheral neuropathy of the upper extremities if he is later diagnosed. For the reasons provided above, the preponderance of evidence is against the Veteran’s claim for peripheral neuropathy of the upper extremities. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which are based on the average impairment of earning capacity. 38 U.S.C. § 1155; Part 4. Separate diagnostic codes identify the disabilities present, and those disabilities must be reviewed in relation to the veteran’s history. 38 C.F.R. § 4.1. Policy considerations in this review process include interpreting examination reports in light of the totality of the record, reconciling the various reports into a consistent picture so that the rating may accurately reflect the elements of the disability, resolving reasonable doubt regarding the degree of disability in the claimant’s favor, evaluating functional impairment based upon a lack of usefulness, and evaluating the effects of the disability on the veteran’s normal activities. 38 C.F.R. §§ 4.2, 4.3, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where a veteran has already been entitled to service-connection for a disability and an increase in the disability rating is at issue, the present level of disability is the primary concern. The rating period on appeal of a denial for an increased rating may be one year prior to the date of receipt of the increased rating claim, provided that the evidence reflects a worsening of the disability during that one-year period. 38 C.F.R. §§ 3.400(o)(2). 4.1, 4.2 (2017); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. To establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. 4. Entitlement to a compensable initial rating prior to August 8, 2016, and a rating in excess of 10 percent thereafter, for bilateral hearing loss. The Veteran contends that his hearing is worse than the assigned disability ratings. He reported that he had difficulty with word recognition and that some people sound like they are mumbling. He stated that he had to look at someone’s face to hear them better. He was given hearing. On the authorized audiological evaluation in June 2012, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 20 35 65 95 LEFT 0 15 25 70 80 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left. The examiner diagnosed sensorineural hearing loss in both ears. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level I hearing acuity in both ears. Using those hearing levels under Table VII in 38 C.F.R. § 4.85, warrant a zero percent rating. On the authorized audiological evaluation in August 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 50 70 90 LEFT 10 20 40 70 70 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and 80 percent in the left. The examiner diagnosed sensorineural hearing loss in both ears. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level IV hearing acuity in both ears. Using these findings in Table VII in 38 C.F.R. § 4.85 and warrant a 10 percent rating. Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran’s hearing loss has not approximated the criteria for a compensable rating prior to August 8, 2016, or greater than 10 percent thereafter. The Board observes that the Veteran is competent to report that he has difficulty hearing, but he is not competent to report that his hearing acuity is of sufficient severity to warrant increased compensation under VA’s tables for rating hearing loss disabilities. He does not have the requisite medical expertise to provide such an opinion. Although the Board acknowledges the Veteran’s belief that he should be assigned an increased rating on the basis that his hearing loss has increased in severity, the Board’s decision is based on the results of the audiology studies of record. Thus, the assignment of a rating in excess of the zero percent prior to August 8, 2016, or greater than 10 percent thereafter is not warranted. Despite the foregoing, the Board acknowledges the Veteran’s report regarding the severity of his bilateral hearing loss, to include difficulty understanding conversational speech. After considering his contentions as to the effects of the disability on his daily life, the Board finds that the criteria for additional compensation other than that to which he was found to be entitled to above are not met. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Price, Associate Counsel