Citation Nr: A19002045 Decision Date: 10/17/19 Archive Date: 10/17/19 DOCKET NO. 190211-3659 DATE: October 17, 2019 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to service connection for peripheral neuropathy of the right upper extremity is denied. REMANDED Entitlement to service connection for a left shoulder strain, to include as secondary to his service-connected right shoulder strain, is remanded. FINDINGS OF FACT 1. The Veteran demonstrated, at worst, Level II sensorineural hearing loss in the right ear, and Level I sensorineural hearing loss in the left ear. 2. Peripheral neuropathy of the left lower extremity did not have its onset during the Veteran’s active service, and was not manifested to a compensable degree within one year of separation from active service; the record contains no indication that the Veteran’s current peripheral neuropathy of the left lower extremity is otherwise etiologically related to an in-service injury or disease. 3. Peripheral neuropathy of the left upper extremity did not have its onset during the Veteran’s active service, and was not manifested to a compensable degree within one year of separation from active service; the record contains no indication that the Veteran’s current peripheral neuropathy of the left upper extremity is otherwise etiologically related to an in-service injury or disease. 4. Peripheral neuropathy of the right lower extremity did not have its onset during the Veteran’s active service, and was not manifested to a compensable degree within one year of separation from active service; the record contains no indication that the Veteran’s current peripheral neuropathy of the right lower extremity is otherwise etiologically related to an in-service injury or disease. 5. Peripheral neuropathy of the right upper extremity did not have its onset during the Veteran’s active service, and was not manifested to a compensable degree within one year of separation from active service; the record contains no indication that the Veteran’s current peripheral neuropathy of the right upper extremity is otherwise etiologically related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2018). 2. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § §§ 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § §§ 3.303, 3.304, 3.307, 3.309. 4. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § §§ 3.303, 3.304, 3.307, 3.309. 5. The criteria for entitlement to service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to January 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A May 2011 Rating Decision denied entitlement to service connection for left shoulder strain. A February 2012 Rating Decision denied entitlement to an initial compensable rating for service-connected bilateral hearing loss. An August 2017 Rating Decision denied entitlement to service connection for peripheral extremities of the extremities. The Board notes that the issues of entitlement to an initial compensable rating for bilateral hearing loss and entitlement to service connection for a left shoulder strain were previously remanded for additional development in June 2017. The Board’s June 2017 Remand directed that the Veteran be provided with notice of the evidence necessary to establish a claim for service connection for left shoulder disability on a secondary basis, be provided with a VA examination to determine the probable nature and etiology of his left shoulder strain, and be provided with a VA examination to determine the severity of his bilateral hearing loss. The Veteran was provided with additional notice and VA examinations in July 2017. As such, with respect to the issues decided herein, the Board finds that there has been substantial compliance with its June 2017 Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. Here, in correspondence dated in July 2018, the Veteran chose to participate in VA’s test program, the Rapid Appeals Modernization Program (RAMP). This decision has been written consistent with the new AMA framework. The Veteran selected the Higher-Level Review lane when he submitted the RAMP election form in July 2018. Accordingly, a November 2018 RAMP Rating Decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this RAMP Rating Decision to the Board and requested Direct Review of the evidence considered by the Agency of Original Jurisdiction (AOJ) in February 2019. As explained on the RAMP Selection Form, a Direct Review entails review of the evidence of record of the time of the prior decision; there is no evidence submission or hearing request when this option is chosen. The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor his representative have raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381(Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran seeks entitlement to a compensable rating for his service-connected bilateral hearing loss. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § § 4.21. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disabilities ratings have not been previously staged. As discussed below, uniform evaluations are still warranted. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Under the applicable criteria disability ratings are determined by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from zero percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See 38 C.F.R. § § 4.85. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level V and the poorer ear has a numeric designation Level VII, the percentage evaluation is 30 percent. See 38 C.F.R. § § 4.85. Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies of: 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § § 4.86 (a), (b). Here, the Veteran was provided with a VA Hearing Loss & Tinnitus Examination in November 2011, at which time he was diagnosed as having bilateral sensorineural hearing loss. Specifically, audiometric testing conducted as part of the November 2011 VA examination revealed that the Veteran's pure tone auditory thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 10 50 65 LEFT 20 20 15 25 50 The average decibel loss was 36.25 in the right ear. The average decibel loss was 27.5 in the left ear. Speech audiometry revealed speech recognition ability of 88.94 percent in the right ear and of 96 percent in the left ear. From Table VI of 38 C.F.R. § § 4.85, Roman Numeral II is derived for the right ear and Roman Numeral I for the left ear when intersecting the percent of speech discrimination row with the puretone threshold average column. A noncompensable evaluation is derived from Table VII by intersecting row II, the right ear, with column I, the left ear. The evaluation for hearing loss is based on objective testing. Higher evaluations are assigned for more severe hearing impairment. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. At that time, the Veteran reported his functional impairments included having to turn the television volume louder and having to ask people to repeat their words. The Veteran was provided with another VA Hearing Loss & Tinnitus Examination in July 2017, at which time he was diagnosed as having bilateral sensorineural hearing loss. Specifically, audiometric testing conducted as part of the July 2017 VA examination revealed that the Veteran’s pure tone auditory thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 50 65 LEFT 20 20 15 35 60 The average decibel loss was 39 in the right ear. The average decibel loss was 33 in the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 100 percent in the left ear. From Table VI of 38 C.F.R. § 4.85, Roman Numeral I is derived for the right ear and Roman Numeral I for the left ear when intersecting the percent of speech discrimination row with the puretone threshold average column. A noncompensable evaluation is derived from Table VII by intersecting row I, the right ear, with column I, the left ear. The evaluation for hearing loss is based on objective testing. Higher evaluations are assigned for more severe hearing impairment. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § § 4.85, Diagnostic Code 6100. At that time, the Veteran reported his functional impairments resulted in hearing difficulty in adverse listening situations, such as noisy backgrounds and while watching television. The Veteran contends that his hearing acuity warrants a compensable evaluation. The Veteran is competent to provide evidence of that which he experiences, including a history of noise exposure and difficulty hearing. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran is competent to relate that he suffers from hearing loss. Nevertheless, the Veteran’s lay contentions regarding the severity of bilateral hearing loss disability are outweighed by the more probative, objective medical evidence. The Board finds the results of the VA examinations to be the most probative evidence of record. VA recognizes the Veteran’s belief that he is entitled to a compensable rating for bilateral hearing loss disability. However, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. See 38 C.F.R. § §§ 4.85, 4.86, Diagnostic Code 6100. There is no doubt to resolve. Consequently, a compensable rating for bilateral hearing loss disability is not warranted. Entitlement to service connection for peripheral neuropathy of the extremities The Veteran seeks entitlement to service connection for peripheral neuropathy of the left lower extremity, the left upper extremity, the right lower extremity, and the right upper extremity. He reported that he first experienced these symptoms in 1983 as a result of doing push-ups, running on pavement, and jumping off tanks in service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “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) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § § 3.303(d). Service connection for certain chronic diseases, including other organic diseases of the nervous system, such as peripheral neuropathy, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. § §§ 3.307(a) (3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran’s service treatment records are devoid of notations regarding peripheral neuropathy. The Veteran sought treatment for left shoulder pain in November 1984 which was diagnosed as a possible strain in the triceps and deltoid muscle groups. At his November 1985 Report of Medical History at separation, the Veteran reported severe pain in the right shoulder for seven days; significantly, however, he denied ever having neuritis, paralysis, or lameness. His corresponding November 1985 Report of Medical Examination at separation indicated that his upper extremities, lower extremities, and feet were within normal limits. Treatment notes dated in December 1985 documented pain and weakness in the right shoulder, and the Veteran was diagnosed as having an injury of the right thoracic nerve. The Board notes that the Veteran has already been service-connected for right shoulder strain. The Veteran’s post-service medical treatment records show that he was involved in a motor vehicle accident in 2002, after which time he was diagnosed as having cervical spine strain with possible mild neuropathy involving the digits of the left hand. An October 2010 VA treatment note indicated possible peripheral neuropathy. He was diagnosed as having left ulnar neuropathy in March 2011, as having right upper extremity carpal tunnel syndrome in March 2011, and as having left lower extremity and right lower extremity peripheral neuropathy in July 2017. The Veteran was provided with a VA Peripheral Nerves Conditions Examination in July 2017, at which time he was diagnosed as having peripheral neuropathy of the bilateral upper and lower extremities. However, the VA examiner opined that the Veteran’s peripheral neuropathy of the bilateral upper extremities was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner explained that there were no medical treatment records prior to 2011 formally diagnosing neuropathy of the upper extremities, and that the examination conducted at the time of his service discharge in 1985 did not mention neuropathy of the hands. The Veteran was provided with another VA Peripheral Nerves Conditions Examination in February 2018, at which time he was diagnosed as having neuropathy of the right upper extremity and radiculopathy of the bilateral lower extremities. However, the VA examiner opined that the Veteran’s peripheral neuropathy was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner explained that although service treatment records documented an injury of the right thoracic nerve in 1985, this nerve innervated the serratus anterior muscle and was not part of the lower radicular group that currently demonstrated neuropathy upon examination. The Board affords greater probative weight to the November 1985 Report of Medical History and Report of Medical Examination (which demonstrated normal extremities at the time of separation from service) as well as the negative nexus opinions offered by VA examiners in July 2017 and February 2018 than the Veteran’s lay reports of symptoms, as the examinations were conducted by competent clinicians. The Board finds that the contemporaneous record, to include the Veteran’s November 1985 Report of Medical History at separation, is entitled to more probative weight than the more recent statements submitted in support of a claim for monetary benefits. Moreover, the Veteran did not seek treatment for symptomatology associated with peripheral neuropathy until after a 2002 motor vehicle accident, which occurred many years following his 1986 separation from service. The most probative evidence establishes that the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities is not related to an in-service event, injury, or disease. As the evidence preponderates against the claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND The Veteran also seeks entitlement to service connection for a left shoulder strain, to include as secondary to his service-connected right shoulder strain. This issue was remanded by the Board in June 2017, in part, to obtain a VA opinion as to whether it was at least as likely as not (50 percent probability or greater) that the Veteran's left shoulder disability was caused or aggravated (worsened beyond the natural progress of the disorder) by the Veteran's service-connected right shoulder strain. Pursuant to the Board’s June 2017 Remand directives, the Veteran was provided with a VA Shoulder & Arm Conditions Examination in July 2017, at which time he was diagnosed as having degenerative joint disease of the left acromioclavicular joint. Nonetheless, the VA examiner opined that the Veteran’s left shoulder disability was less likely than not proximately due to or the result of the Veteran's service-connected right shoulder strain. In support of this opinion, the VA examiner explained that, “A right shoulder problem does not cause a left shoulder problem. The problems develop independently.” In September 2017, the same VA examiner who offered the July 2017 opinion was asked to specifically address the Veteran's theory that he favored his left side due to his service-connected right shoulder strain, which required him to put more weight and pressure on his left side and resulted in inflammation. In response, the VA examiner again opined that the Veteran’s left shoulder disability was less likely than not proximately due to or the result of the Veteran’s service-connected right shoulder strain. In support of this conclusion, the VA examiner explained that, “When one joint bothers us, we usually rest both especially in picking up heavy objects, we do this with both hands (shoulders and arms). Picking up lighter material does result in more use (pressure) of the opposing joint. However, lighter objects do not ‘stress’ the opposing joint. Therefore, this Veteran's contention is unwarranted und untrue in the opinion of this Examiner.” However, the Board emphasizes that, in a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (where an examiner finds that a service-connected disability did not cause a claimed disorder and that the claimed disorder was more likely related to other factors, it isn't clear that aggravation has been addressed). Indeed, a June 2018 “Medical Opinion Request” Routing Slip acknowledged that the July 2017 and September 2017 VA opinions did not clearly address the Board’s June 2017 Remand directives; however, it does not appear that an additional VA medical opinion concerning the probable etiology of the Veteran’s left shoulder disability was ever obtained. Accordingly, remand is required to cure a pre-decisional duty to assist error in that the Veteran has not yet been afforded a VA examination that adequately addresses the issue of aggravation of his left shoulder disability. (Continued on the next page)   The matter is REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the Veteran’s left shoulder disability from a qualified VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an additional in-person examination is deemed necessary, it shall be provided. The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s left shoulder disability is aggravated by his service-connected right shoulder strain. Aggravation is defined as a worsening beyond the natural progression of the disease. An adequate supporting rationale for all opinions expressed must be provided. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § § 20.1303.