Citation Nr: 18136199 Decision Date: 09/19/18 Archive Date: 09/18/18 DOCKET NO. 14-41 070 DATE: September 19, 2018 ORDER The application to reopen a claim of entitlement to service connection for right upper extremity neuropathy is granted. The application to reopen a claim of entitlement to service connection for left upper extremity neuropathy is granted. Service connection for neurological disorder in right upper extremity, to include peripheral neuropathy and carpal tunnel syndrome (CTS), and including as due to diabetes mellitus is denied. Service connection for neurological disorder in left upper extremity, to include peripheral neuropathy and CTS, and including as due to diabetes mellitus is denied. Service connection for right ear hearing loss is denied. Service connection for tinnitus is granted. REMANDED Service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. An August 2006 rating decision denied claims of service connection for right and left upper extremity peripheral neuropathy; the claimant did perfect his appeal to this decision; he did not thereafter submit new and material evidence within the one-year appeal period; and VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period for this decision. 2. Evidence received since the August 2006 rating decision is new, is related to an unestablished fact necessary to substantiate the claims of service connection for right and left upper extremity peripheral neuropathy, and it raises a reasonable possibility of substantiating the claims. 3. The preponderance of the evidence shows that the Veteran’s neurological disorders in the right and left upper extremity, including any CTS and peripheral neuropathy, were not caused or aggravated by a service-connected disability to include diabetes mellitus, were not present in service or until many years thereafter, and are not related to service or to an incident of service origin. 4. The Veteran does not have a right ear hearing loss disability for VA purposes at any time during the pendency of the appeal. 5. The Veteran’s tinnitus had its onset during service. CONCLUSIONS OF LAW 1. The August 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence submitted to reopen the claims of entitlement to service connection for right and left upper extremity peripheral neuropathy is new and material and therefore the claims are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for a neurological disorder in the right upper extremity, to include peripheral neuropathy and CTS, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for a neurological disorder in the left upper extremity, to include peripheral neuropathy and CTS, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 5. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 6. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from December 1969 to July 1980. The case is on appeal from a March 2013 rating decision adjudicating the claims for service connection for hearing loss and tinnitus and an August 2013 rating decision adjudicating claims for service connection for peripheral neuropathy in each upper extremity. The Veteran had also appealed claims for service connection for peripheral neuropathy in each lower extremity. However, the RO granted service connection for peripheral neuropathy in the left and right lower extremities in a September 2014 rating decision. As this represents a full grant of the benefit sought, these claims are no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). In a phone conversation in June 2017, the Veteran withdrew his request for a Board hearing. He also stated his request to withdrawal the issues of service connection for hearing loss and tinnitus. However, the request for withdrawal was not accepted, and in May 2018 correspondence the Board asked the Veteran to submit his request in writing. He has not done so, and now the Board will proceed to adjudicate these claims. Regarding the Veteran’s claim of service connection for peripheral neuropathy in the upper extremities, the June 2013 VA examiner diagnosed CTS. As a result, the Board will recharacterize the claims as ones of service connection for neurological disorders in the respective upper extremities, to include peripheral neuropathy and CTS. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Application to Reopen The Veteran claims, in substance, that he is entitled to service connection for peripheral neuropathy in the upper extremities because they are due to his military service. As to reopening a prior final decision, the law provides that if new and material evidence has been presented or secured with respect to matters which have been disallowed, these matters may be reopened and the former disposition reviewed. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that in determining whether the evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board is required to consider all the evidence received since the first denial of the claim in light of the totality of the record. See Hickson v. West, 12 Vet. App. 247, 251 (1999). In this regard, the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010) held that the language of 38 C.F.R. § 3.156(a) created a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Further, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. With the above criteria in mind, the record shows that an August 2006 rating decision denied claims of service connection for right and left upper extremity peripheral neuropathy. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, in September 2006, the Veteran noted disagreement with the denial. A statement of the case (SOC) was issued in November 2006. However, the Veteran did not thereafter perfect his appeal. The Board also finds that no new and material evidence was received by the RO in the first year following the issuance of this rating decision. See 38 C.F.R. § 3.156(b). In addition, the Board finds that VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period for any of these rating decisions. See Turner, super. Accordingly, the Board finds that the August 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Since this final August 2006 rating decision, the Veteran was granted service connection for diabetes mellitus, type II in March 2013 and now claim that his peripheral neuropathy was caused or aggravated by his now-service-connected diabetes mellitus. Further, as noted above, at a June 2013 VA examination, the Veteran was diagnosed with CTS, another neurological disorder in the upper extremities. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for peripheral neuropathy in the upper extremities is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Service Connection Claims 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, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for impaired hearing is subject to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active military service in order for service connection to be granted. The regulation does not necessarily preclude service connection for hearing loss that first met the regulation’s requirements after service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. The United States Court of Appeals for Veterans Claims (Court) in Hensley also held that “audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss.” Hensley, 5 Vet. App. at 157. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Service connection for neurological disorder in right and left upper extremities The Veteran claims that his neurological disorders, diagnosed as CTS and claimed as peripheral neuropathy, in the left and right upper extremities is secondary to service-connected diabetes mellitus. As to secondary service connection under 38 C.F.R. § 3.310, the Veteran was afforded a VA examination of his neurological disorders in June 2013. A 2012 diagnosis of left median neuropathy as well as bilateral hand paresthesias was noted. A history of CTS was also noted. The Veteran stated that he had intermittent pain, numbness, and tingling hands worse in the year prior to examination. A diagnosis of upper extremity peripheral neuropathy was not endorsed. The examiner opined that the Veteran’s current disorder was CTS and that it “would require speculation to attribute current upper extremity neuropathy and any progression to diabetes mellitus.” VA Examination Report at 11. In support, the examiner noted a diagnosis of CTS and testing from 2012 showing a left median neuropathy but negative findings otherwise. This was supportive of a CTS diagnosis rather than peripheral neuropathy. The examiner also explained that CTS refers to the complex of symptoms and signs brought on by compression of the median nerve as it travels through the carpal tunnel causing pain, paresthesias, and less commonly weakness in the median nerve distribution. CTS is thought to be caused by anatomic compression and inflammation. Thus, he concluded that extremity neuropathy and any progression could not be attributed to diabetes mellitus without resort to speculation. The Board finds that “attributed to” satisfies the “cause” prong of secondary service connection, while the “any progression” satisfies the “aggravation” prong of secondary service connection. The Board finds the examiner’s opinion adequate to address the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). First, the opinion directly addresses the Veteran’s contention that his neurological symptoms in the upper extremities were caused by diabetes mellitus. Second, the examiner considered the Veteran’s symptoms to render a diagnosis of CTS bilaterally. He then explained the mechanism for CTS, which he did not attribute to diabetes mellitus. Finally, he addressed the indication of median neuropathy from 2012 and concluded that CTS was the proper diagnosis based on examination. Lastly, the Board finds the June 2013 VA examiner’s opinion the most competent and credible evince of record because it is provided after a review of the record on appeal, it is supported by citation to evidence found in the record, and it is not contradicted by any other medical opinion. See Owens, supra; See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In this regard, while the Veteran has stated his belief that his upper extremity neurological symptoms are related to service, he does not have the expertise to draw a medical conclusion as to the etiology of his neurological symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the most probative evidence of record shows that the Veteran’s diagnosed neurological disorder of the upper extremities (i.e., CTS) was not caused or aggravated by his service connected diabetes mellitus and secondary service connection is denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. In reaching this conclusion, the Board has not overlooked the Veteran’s claim for peripheral neuropathy. However, as explained by the June 2013 VA examiner, the Veteran does not have peripheral neuropathy in either upper extremity. Thus, service connection for peripheral neuropathy is not warranted on a secondary or a direct basis. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As to direct service connection under 38 C.F.R. § 3.303, the Veteran does not claim and the record does not show that any neurological disorder of the upper extremities, to include peripheral neuropathy and CTS, is directly due to his military service. In this regard, a review of the service treatment records, including the July 1980 separation examination does not show the Veteran being diagnosed with any neurological disorder of the upper extremities while on active duty or within the first year after active duty. See 38 C.F.R. §§ 3.303(a), 3.307, 3.309; see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Likewise, the record does not show the Veteran had a problem with any neurological disorder of the upper extremities in and since service because the record does not show him being diagnosed with them until years after service. See 38 C.F.R. §§ 3.303(b). In fact, neither the Veteran or his representative have claimed otherwise. See Davidson, supra. Furthermore, the record does not contain a medical opinion linking the Veteran’s post-service neurological disorder of the upper extremities with his military service. See 38 C.F.R. §§ 3.303(d). Given the existing record, the Board also finds that it need not obtain a medical opinion as to this question because the record does not even include conclusory and generalized lay statements linking the any neurological disorder of the upper extremities to service. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Furthermore, the Board finds that neither the Veteran nor his representative can provide this missing nexus opinion because this is a complex medical question and they do not have the required medical expertise. See Davidson, supra. Lastly, the Board finds that the Veteran does not have a current diagnosis of peripheral neuropathy in the upper extremities. Therefore, the benefit-of-the-doubt rule does not apply as the preponderance of the evidence is against the claim and service connection is not warranted for a neurological disorder in the left or right upper extremity including peripheral neuropathy and CTS. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Service connection for right ear hearing loss The Veteran claims that his hearing loss is related to service. The in-service records, including the July 1980 separation examination, are negative for hearing loss in the right ear even as defined by Hensley, supra. See Colvin, supra. Moreover, and more importantly, the post-service record is negative for a diagnosis of hearing loss in the right ear as defined by VA. In fact, when examined by VA in February 2013 for the express purpose of obtaining such a diagnosis, audiometric examination at that time showed that he did not have hearing loss in the right ear as defined by VA. Id. Simply stated, while the Veteran’s hearing may not be what it once was, it is still within a range of “normal” for VA purposes and not a “disability” for VA purposes. Further, while the Veteran is competent to report on the symptoms he observes, he is not competent to diagnose hearing loss as defined by VA because diagnosing it requires special medical training that he does not have and therefore he cannot provide the missing diagnosis. See Davidson, supra. Accordingly, finds that the most probative evidence of record shows that the Veteran did not have a diagnosis of hearing loss in the right ear at any time during the pendency of the appeal. Therefore, while the Board recognizes the fact that the Veteran’s hearing in his right ear was not what it used to be, the claim must denied because the degree of lost hearing does not meet the regulatory definition of hearing loss. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.385. 3. Service connection for tinnitus The Veteran claims his tinnitus is related to service. Specifically, he claims that he has experienced tinnitus intermittently since 1972, when he was still in service. Further, the Veteran has stated that he was exposed to noise from aircraft and machinery during service. The record shows the Veteran being diagnosed with tinnitus. See, e.g., VA examination dated in June 2013. Moreover, the Board finds that that his DD Form 214 verifies his occupational specialty of as an aircraft mechanic provides competent and credible proof of the in-service incurrence of an injury (i.e., acoustic trauma) because the injury and symptom (ringing in his ears) is observable by a lay person and is consistent with his in-service history. See Davidson, supra. Lastly, the Board finds the Veteran’s statement regarding his having continued problems with observable symptom of his tinnitus (i.e., ringing in his ears) is proof that his disorder has continued since service because this symptom is observable by lay persons. Id. In reaching this conclusion, the Board has not overlooked the June 2013 VA audiological examination in which it was opined that the Veteran’s tinnitus was not due to his military service. However, the Board finds this opinion inadequate because it is premised solely on a lack of contemporaneous treatment records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that a lack of corroborating records “does not, in and of itself, render lay evidence not credible,” but may be weighed in assessing the claim). As a result, the Board finds that the Veteran’s tinnitus had its onset during service connection for tinnitus is granted. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert, supra. REASONS FOR REMAND Service connection for left ear hearing loss The Veteran has a left ear hearing loss disability for VA purposes. He notes that he was a metal smith during service which required him to be around aircraft and work with generators and compressors. Moreover, the Veteran’s DD 214 confirms his occupational specialty was aircraft mechanic. Furthermore, the Veteran’s July 1977 audiogram showed impaired hearing as defined by Hensley, supra, though not a hearing loss disability as defined by VA regulation. Tellingly, while the June 2013 examiner opined that it was less likely than not that left ear hearing loss was related to service as there was no permanent threshold shift found upon separation from service, he did not discuss the July 1977 audiogram. Therefore, the Board finds the examination inadequate and a remand for a new VA examination is required. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). While the appeal is in remand status any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). This matter is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 3. Thereafter, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the origins of the Veteran’s left ear hearing loss. All studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Following consideration of the evidence of record (both lay and medical), the examiner is asked answers to the following question: It is at least as likely as not that the Veteran’s left ear hearing loss is related to service or onset within a year after separation from service. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. In providing the opinions, the examiner should consider and discuss the significance, if any, of the July 1977 audiogram and the Veteran’s occupational specialty as an aircraft mechanic. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. (Continued on the next page)   A complete rationale should be provided for any opinion rendered. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George