Citation Nr: 19137807 Decision Date: 05/15/19 Archive Date: 05/15/19 DOCKET NO. 16-34 677 DATE: May 15, 2019 ORDER Entitlement to service connection for bilateral sensorineural hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for Hepatitis C is granted. Entitlement to service connection for elevated liver enzymes, to include as secondary to Hepatitis C is denied. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for neuropathy of the lower extremities is remanded. Entitlement to service connection for residuals of a cold injury is remanded. Entitlement to service connection for neuropathy of the upper extremities is remanded. FINDINGS OF FACT 1. The probative evidence of record is at least in equipoise as to whether the Veteran’s bilateral sensorineural hearing loss was incurred during or caused by his active service. 2. The probative evidence of record is at least in equipoise as to whether the Veteran’s tinnitus was incurred during or caused by his active service. 3. The probative evidence of record is at least in equipoise as to whether the Veteran’s Hepatitis C was incurred during or caused by his active service. 4. The Veteran does not have a current diagnosis of elevated liver enzymes. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral sensorineural hearing loss are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for Hepatitis C are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for elevated liver enzymes are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1967 to October 1970. In December 2018, the Veteran testified before the undersigned at a Board Central Office hearing. A transcript of that hearing is of record. Regarding the Veteran’s claim for entitlement to service connection for elevated liver enzymes, neither the Veteran nor his representative have raised any issues with 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). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When a chronic disease manifests to a degree of 10 percent or more within 1 year from the date of separation from service, that disease is presumptively service-connected. 38 C.F.R. §§ 3.303(b), 3.307(a)(3). Bilateral hearing loss and tinnitus are chronic diseases as defined by 38 C.F.R. § 3.309(a). When a disease is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Entitlement to service connection for bilateral sensorineural hearing loss and tinnitus. The Veteran contends that his current bilateral hearing loss and tinnitus were incurred during or caused by his active military service. 2. For VA purposes, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2018). The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The audiological testing conducted at the Veteran’s June 2014 VA examination showed that his level of hearing loss meets the threshold set forth in 38 C.F.R. § 3.385. Military personnel records establish that the Veteran served as an infantryman and power generator operator during his active service. Consequently, the VA acknowledges the Veteran was exposed to high levels of military noise. Further, a June 2014 VA examination and VA treatment records confirm a current diagnosis of sensorineural bilateral hearing loss and tinnitus. The Veteran’s hearing loss and tinnitus results in a functional impairment of difficulty understanding others in conversations, painful ringing, and having to increase volume on electronics to hear sound. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). At his December 2018 hearing, the Veteran credibly testified that he noticed bilateral hearing impairment and ringing in his ears immediately following his completion of active service. The Veteran’s spouse also testified that the onset of the Veteran’s hearing impairment was immediately following his active service. The Veteran is competent report the onset of his hearing impairment and tinnitus. Kahana, 24 Vet. App. at 435. His assertions are competent and credible. This is probative evidence of continuity of symptomatology in favor of the Veteran’s claim. Conversely, in a June 2014 VA hearing examination, the VA examiner noted that the Veteran had some occupational noise exposure and noted the Veteran’s normal hearing examination results at separation. The VA examination is probative evidence against the Veteran’s claim. As noted above, where a veteran asserts entitlement to a chronic disease, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service. Walker, 708 F.3d 1331 (Fed. Cir. 2013). The Board finds that the overall weight of the evidence is at least in equipoise as to whether the Veteran’s bilateral sensorineural hearing loss and tinnitus are related to his period of active service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49 (1990). Accordingly, service connection for bilateral hearing loss and tinnitus is granted. 3. Entitlement to service connection for Hepatitis C The Veteran contends that his current Hepatitis C was incurred during his active military service. The Veteran asserts that contacted Hepatitis C when he was administered immunization shots using a jet air gun injector during his active service. An October 2014 VA hepatitis, cirrhosis, and other liver conditions examination confirms that the Veteran has a current diagnosis of Hepatitis C, diagnosed in January 1983. The examination notes that the Veteran is negative for risk factors of Hepatitis C. The October 2014 VA examination notes the Veteran did receive jet air immunizations upon his entry into active duty. The October 2014 VA examiner concluded: It is biologically plausible that [the Veteran’s] [Hepatitis C] infection was incurred in or caused by the inoculations delivered by jet air gun injectors during service. However, with the available evidence and lack of strong [gastroenterologist] expert statement for support, this examiner cannot opine with 50% or greater probability without resorting to mere speculation. The physician’s assertions and rationale are competent and credible. This is probative medical evidence against the Veteran’s claim. Conversely, a January 2019 private medical opinion from a gastroenterologist submitted by the Veteran states: I have reviewed the records concerning [the Veteran] regarding his Hepatitis C history. It was diagnosed in the 1980s and treated in 2012 with complete therapy and no evidence of recurrence since then. There [were] no signs of cirrhosis. [The Veteran] has no known risk factors for contracting Hepatitis C. Accordingly, it is of my medical opinion that his Hepatitis C is at least as likely as not (50% or higher probability) a result of his military service exposure. My rational in this conclusion is the high incidence of Hepatitis C seen in veterans during the time of his service and [the Veteran’s] [lack] of other risk factors. The physician’s assertions and rationale are competent and credible. This is probative medical evidence in favor of the Veteran’s claim. The Board finds that the overall weight of the medical evidence is at least in equipoise as to whether the Veteran’s Hepatitis C is related to his period of active service. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the Veteran. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49 (1990). Accordingly, service connection for Hepatitis C is granted. 4. Entitlement to service connection for elevated liver enzymes The Veteran contends that he has elevated liver enzymes that were caused or aggravated by his now service-connected Hepatitis C. At present, the probative medical evidence of record does not establish that the Veteran has elevated liver enzymes. Examinations completed in January 2019 and October 2014 both note the Veteran completed additional diagnostic testing regarding the effects of his Hepatitis C. However, neither examination reports elevated enzyme levels. Further, the Veteran’s VA treatment records and private medical records are silent for a diagnosis of elevated liver enzyme levels. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges the Veteran’s December 2018 testimony that he has elevated liver enzymes as a result of his Hepatitis C. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. However, determining the requires complex medical inquiry into the Veteran’s internal gastrointestinal functioning. With regard to the specific issue in this case, whether he has a current diagnosis of elevated liver enzymes, falls outside the realm of knowledge of the Veteran in this case. See Jandreau, 492 F.3d at 1377 n.4. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, the probative value of his lay assertions is low. The results of the October 2014 and January 2019 hepatitis examinations are of significantly more probative value. Accordingly, the Veteran’s claim for entitlement to service connection for elevated liver enzymes is not warranted. REASONS FOR REMAND Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. 1. Entitlement to service connection for a low back disability, residuals of a cold injury, and neuropathy of the bilateral upper and lower extremities is remanded. The Veteran contends that his current low back disability was incurred during or caused by his active military service. In December 2018, the Veteran testified that pushing generators and loading coal during his active service caused his current back condition. Additionally, the Veteran’s spouse testified that the Veteran exhibited symptoms of a low back disability, including walking hunched over and not being able to lift heavy items, after his completion of active service. The Veteran’s VA treatment records note an active diagnosis of chronic back pain. In December 2018, the Veteran testified that he has been receiving treatment for a low back disability from his private physician. The Board notes private treatment records of a low back disability have not been associated with the claims file. A VA back (thoracolumbar spine) examination and medical opinion regarding the etiology of the Veteran’s current back disability is necessary to comprehensively evaluate the Veteran’s claim for service connection. In addition, in December 2018, the Veteran testified that he has pain in his lower extremities as a result of his low back disability. The record does not contain a VA medical examination or opinion regarding a diagnosis and possible etiology for the Veteran’s claimed neuropathy of the lower extremities. A VA peripheral nerves examination and medical opinion regarding the etiology of the Veteran’s claimed neuropathy of the bilateral lower extremities is necessary to comprehensively evaluate the Veteran’s claim for service connection. The Veteran contends that he has arthritis in his left and right hands due to exposure to extreme cold during his period of active service in Germany. In December 2018, he testified that during his military service he routinely experienced pain and numbness in his hands after exposure to extreme cold. He further stated that he has continued to experience pain in his hands since he completed his active service. Finally, the Veteran indicated that medical professionals have diagnosed him with arthritis in his hands. A VA joints examination and medical opinion regarding the etiology of the Veteran’s claimed residuals of a cold injury, to include arthritis of the bilateral hands is necessary to comprehensively evaluate the Veteran’s claim for service connection. Finally, in December 2018, the Veteran testified that he experiences pain in his upper extremities as a result of his low back disability and a cold injury. The Veteran is competent to report symptoms observable to a lay person, including pain in his upper extremities. Kahana, 24 Vet. App. at 435. At present, the probative evidence of record does not contain a VA medical examination or opinion regarding a diagnosis and possible etiology for the Veteran’s claimed neuropathy of the upper extremities. A VA peripheral nerves examination and medical opinion regarding the etiology of the Veteran’s claimed neuropathy of the bilateral upper extremities is necessary to comprehensively evaluate the Veteran’s claim for service connection. Accordingly, the matters are REMANDED for the following action: 1. Obtain any outstanding private treatment records relevant to treatment the Veteran received for his low back disability. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Schedule the Veteran for an examination with an appropriate clinician for his claimed low back disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s low back disability began during active service, or is related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician for his claimed residuals of a cold injury, to include arthritis of the hands. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must provide an opinion as whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s residuals of a cold injury began during active service, are related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Schedule the Veteran for an examination with an appropriate clinician for his claimed neuropathy of the bilateral upper and lower extremities. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must determine whether the Veteran has neuropathy of the bilateral upper extremities. If so, then the examiner must provide opinions as to the following: a. Whether the Veteran’s neuropathy of the bilateral upper extremities is at least as likely as not (50 percent probability or greater) proximately due to his low back disability. b. Whether the Veteran’s neuropathy of the bilateral upper extremities is at least as likely as not (50 percent probability or greater) aggravated beyond its natural progression by his low back disability. c. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s neuropathy of the bilateral upper extremities is proximately due to his claimed residuals of a cold injury. d. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s neuropathy of the bilateral upper extremities was aggravated beyond its natural progression by his claimed residuals of a cold injury. The examiner must also determine whether the Veteran has neuropathy of the bilateral lower extremities. If so, then the examiner must provide opinions as to the following: a. Whether the Veteran’s neuropathy of the bilateral lower extremities is at least as likely as not (50 percent probability or greater) proximately due to his low back disability. b. Whether the Veteran’s neuropathy of the bilateral lower extremities is at least as likely as not (50 percent probability or greater) aggravated beyond its natural progression by his low back disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page)   5. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel