Citation Nr: 20002173 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 15-45 701 DATE: January 9, 2020 ORDER 1. Entitlement to service connection for coronary artery disease (CAD) is denied. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is denied. 3. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide agent exposure, is denied. 4. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide agent exposure, is denied. 5. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran was not exposed to herbicide agents during service in Korea. 2. The Veteran’s CAD did not have its onset in service or within one year of service, and the record contains no indication that the Veteran’s CAD was otherwise etiologically related to service. 3. The Veteran’s diabetes mellitus, type II, did not have its onset in service or within one year of service, and the record contains no indication that the Veteran’s diabetes mellitus, type II, was otherwise etiologically related to service. 4. The Veteran does not have peripheral neuropathy of the left lower extremity. 5. The Veteran does not have peripheral neuropathy of the right lower extremity. 6. The Veteran’s service-connected bilateral hearing loss is manifested by hearing acuity no worse than Level IV bilaterally. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for CAD have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2018). 3. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity, have not been met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 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. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 5. The criteria for the assignment of an initial rating in excess of 10 percent for the service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to October 1972, and from October 1972 to October 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012 and October 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. At his request, the Veteran was scheduled for a June 2019 Board hearing; however, in May 2019, the Veteran’s attorney withdrew the hearing request. Accordingly, the Board considers the Veteran’s request for a hearing to be withdrawn. 38 C.F.R. § 20.704(d), (e). The Veteran was granted service connection for his bilateral hearing loss in a May 2012 rating decision. Notification regarding this decision was sent to the Veteran on June 4, 2012. The Veteran’s notice of disagreement (NOD) with the rating assigned to his bilateral hearing loss disability in the May 2012 rating decision was received by VA on June 5, 2013. Although the Veteran’s NOD was not timely, the RO nonetheless accepted it and issued a statement of the case (SOC) in October 2015, which was followed by the Veteran’s timely VA Form 9. See 38 C.F.R. § 20.302. The Board recognizes that the Veteran has not had VA examinations for CAD; diabetes mellitus, type II; bilateral peripheral neuropathy; or a psychiatric disorder, to include PTSD. However, the Board finds that examinations are not necessary because the record does not establish a current diagnosis with respect to bilateral peripheral neuropathy, or an in-service presence of an associated event, injury or disease with respect to any of the claimed disorders. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Additional evidence was added to the record following issuance of the October 2015 statement of the case (SOC), accompanied by a waiver of RO consideration of new and material evidence. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for coronary artery disease (CAD) and diabetes mellitus, type II At the outset, the Board acknowledges that post-service medical treatment records show that the Veteran has received diagnoses of CAD and type II diabetes mellitus. The Veteran’s service treatment records (STRs), however, are silent for complaints or treatment related to a heart disease or type II diabetes mellitus. Although his enlistment examination appears to note a heart murmur, no diagnosis of CAD was noted, and he was cleared to enlist; his separation examination does not indicate any heart problems. Thus, with regard to CAD, the Board finds that the presumption of soundness attaches in this case. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). His enlistment and separation examination reports show that his endocrine system was clinically evaluated as normal. There is no evidence in this case, nor does the Veteran contend, that CAD or diabetes mellitus, type II had its onset during his period of active service. Nor is there evidence to suggest the presence of any of the claimed disabilities until many years after the Veteran’s service, and thus, there is no indication of continuity of symptoms since service or that the Veteran’s CAD or type II diabetes mellitus manifested to a compensable degree within one year of his separation from military service in 1975. Accordingly, service connection for these disabilities cannot be granted on a direct basis based on in-service incurrence or on a presumptive basis for chronic diseases. However, the Veteran contends that he was exposed to Agent Orange while he was in Korea during active service. Specifically, he reported that he worked at a special ammo depot where chemical and possible nuclear warfare was stored. The Veteran also indicates that during active service, he personally observed the spraying of herbicide agents, and he was reportedly sprayed with a chemical that he was informed was dichlorodiphenyltrichloroethane (DDT) bug spray. The Veteran indicated that he developed rashes and other skin problems during service that he did not have prior to his exposure to the sprayed chemicals in service, thereby establishing his exposure to herbicide agents. Initially, the Board notes that there is no dispute that the Veteran did not serve in the Republic of Vietnam during the Vietnam Era; he does not contend he had Vietnam service and the record does not support such service. The Veteran’s military personnel records reflect that his military occupational specialty (MOS) was that of a Military Policeman in Korea with the 110th Military Police Company from March 1974 to March 1975. Thus, neither the Veteran’s unit or dates of his Korean tour of duty are those recognized as having exposure to Agent Orange while in the DMZ area. Therefore, the presumptive provisions for Agent Orange exposure are not applicable. However, despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). In the instant matter, the Board finds that the Veteran was not exposed to herbicide agents, including Agent Orange, while on active duty. The development performed by the AOJ reveals that the Joint Service Records Research Center (JSRRC) coordinated with the National Archives and Records Administration (NARA) and US Army Center for Military History, which was able to verify that the 110th Military Police Company was located at Camp Ames, South Korea, located approximately 21 miles from the DMZ; however, there was no documented use, storage, spraying, or transportation of herbicides or any specific duties performed by the unit along the DMZ. Thus, exposure to herbicide agents could not be established. The Veteran’s military personnel record and service treatment records (STRs) do not contain any indication that the Veteran was exposed to herbicide agents, to include Agent Orange. Although the Board acknowledges that STRs note that the Veteran sought treatment during service for rashes or other skin conditions, none of these records indicate these skin conditions were a result of herbicide agent exposure. In this regard, the Board acknowledges that the Veteran was a respiratory therapist, and as such, has some medical experience; however, the record does not show that he has medical expertise in attributing symptoms of a skin condition to herbicide agents, to include Agent Orange. The Board has additionally considered the Veteran’s contention that he worked in an area that chemical or possible nuclear warfare was stored and that he claimed to have seen chemicals sprayed or was himself sprayed with chemicals. Even assuming that the Veteran’s recollections were accurate, the evidence does not support that the Veteran is competent to recognize herbicide agents. While veterans are competent to testify to a wide range of matters relating to their own observations, here, the Veteran did not provide an explanation of how he concluded that he was exposed to an herbicide agent other than the aforementioned skin rashes or that he had sufficient expertise to draw such a conclusion. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, the mere observation of spraying chemicals does not necessarily mean that an herbicide agent, such as Agent Orange, as opposed to a commercial herbicide or an insecticide, was used. In summary, the Board finds that the Veteran’s service personnel file and the Formal Finding by the AOJ are the most probative evidence of record as to whether the Veteran was exposed to herbicide agents while serving in Korea. There is simply no documentation that the Veteran was exposed to herbicide agents, and neither the Veteran’s unit or dates of his Korean tour of duty are those recognized as having exposure to Agent Orange while in the DMZ area. Consequently, he cannot be presumed to have been exposed to herbicide agents in Korea. The Veteran’s service personnel records demonstrate that he did not serve in the Republic of Vietnam, and the other probative evidence of record does not show that he was exposed to herbicides at Camp Ames, South Korea. Therefore, the Board finds that the Veteran was not exposed to herbicide agents, to include Agent Orange during his active service in Korea. As the presumption of herbicide agents is not for application and there is no competent and credible evidence of an in-service event, injury, or disease to establish service-connection on a direct basis for either CAD or diabetes mellitus, type II, no further analysis is necessary. The Board finds that the preponderance of the evidence is against the claims for service connection for CAD and type II diabetes mellitus. Accordingly, the benefit-of-the-doubt rule does not apply, and the claims are denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities The Veteran claims that he has neuropathy in both of his legs and feet, described as numbness in his legs and feet, as a result of his active service. The Veteran’s STRs, including his separation examination, are silent for any complaints, treatment, or diagnosis of peripheral neuropathy of the bilateral lower extremities or related symptoms. Post-service medical treatment records reflect that the Veteran had low back pain and associated lower extremity radiculopathy, but no diagnosis or complaints related to peripheral neuropathy is noted. There is no evidence of record providing a diagnosis for, or otherwise indicating the presence of, peripheral neuropathy of either lower extremity. As indicated above, the Board acknowledges that the Veteran was respiratory therapist, and as such, has some medical experience; however, the record does not show that he has medical expertise in attributing symptoms of numbness in his legs and feet to a diagnosis of peripheral neuropathy of the bilateral lower extremities. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1101. Thus, evidence of a current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, the Board finds that the preponderance of the evidence is against the claim for service connection for peripheral neuropathy of the bilateral lower extremities. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert, 1 Vet. App. at 55. INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2018). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2018). Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on pure tone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The “Puretone threshold average” as used in Table VI, is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average determines the Roman numeral designation for hearing impairment from Table VI or Via. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher Roman numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher Roman numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Service connection for bilateral hearing loss was granted by a rating decision dated in May 2012. The disability was assigned a 10 percent disability rating, effective March 2012, under Diagnostic Code (DC) 6100. 38 C.F.R. § 4.85. The Veteran disagreed with the assignment of the 10 percent rating and contends that he is entitled to a rating in excess of 10 percent. On VA audiological examination in May 2012, pure tone thresholds for the Veteran’s right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 55, 60, 60 and 65, for an average of 60. Puretone thresholds for the Veteran’s left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 55, 55, 60, and 65, for an average of 59. The speech recognition score, using the Maryland CNC Test, was 84 percent in the right ear and 80 percent in the left ear. The examiner indicated that the Veteran reported that he had to ask people to repeat themselves and turn the volume up on his television, radio, and telephone; he indicated that he was unable to hear a normal conversation. Evaluating these VA audiological test results cited above, the Board finds that, when the pure tone threshold averages and the speech recognition scores for the Veteran’s right ear from the May 2012 VA examination are applied to Table VI, the numeric designation of hearing impairment is Level III for the right ear and Level IV. However, the provisions of 38 C.F.R. § 4.86, which address exceptional patterns of hearing loss, are applicable to the Veteran’s bilateral ears. When the pure tone threshold average is applied to Table VIa, the numeric designation of hearing impairment is Level IV bilaterally. When the higher designated Roman numeral for the right ear is considered together with the numeric designation for the left ear and applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is 10 percent. 38 C.F.R. § 4.85, DC 6100. Thus, based on the foregoing, the Board finds that a rating in excess of 10 percent for the Veteran’s bilateral hearing loss is not warranted. Although the Board recognizes that the Veteran may have difficulty hearing, the evaluation of hearing loss is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, 3 Vet. App. at 345. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for an evaluation of hearing loss, which requires specific testing. In this case, such mechanical application does not a rating in excess of 10 percent for the period on appeal. Consideration has also been given to the functional effects of the Veteran’s bilateral hearing loss. The May 2012 VA examination notes that the Veteran reported difficulty hearing and understanding the television, radio, telephone, and speech. The rating criteria contemplates the Veteran’s reported decreased hearing acuity and difficulty in understanding conversational speech. “[W]hen a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.” Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Board finds that other than difficulty hearing, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss not contemplated by the rating criteria. See Mittleider v. West, 11 Vet. App. 181 (1998). Thus, the Board finds that the functional effects of the Veteran’s bilateral hearing loss disability are adequately addressed by the rating assigned. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim for an initial rating in excess of 10 percent for the service-connected bilateral hearing loss. This claim, therefore, must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018). REASON FOR REMAND Entitlement to service connection for an acquired psychiatric condition, to include PTSD The Veteran asserts that he has PTSD as a result of his exposure to traumatic events during service, including a friendly-fire death of a fellow service member in 1974. The Veteran, through his attorney, contends that his problems with insomnia and sleep disturbances, noted in his service treatment records in 1974, were symptoms of the stress caused by this traumatic in-service event. Additionally, the Veteran indicated that he has trust issues as a result of constantly being on alert due to threats by North Korea during service. The Veteran’s October 1971 enlistment evaluation notes that the Veteran reported problems sleeping; no psychiatric disorder was noted. A November 1974 service treatment record notes that the Veteran reported difficulty sleeping due to itching; the Veteran was given Benadryl. His September 1975 separation examination is silent for any complaints, treatment, or diagnosis related to symptoms of PTSD or any other psychiatric disorder. An October 2011 private treatment record notes that the Veteran was recently referred for a psychiatric evaluation due to problems with depression. After an initial assessment, the provider noted a provisional diagnosis of moderate to severe major depressive disorder (MDD) with paranoia, and anxiety disorder not otherwise specified (NOS). The Veteran was prescribed medication for treatment, and he continued receiving regular psychiatric evaluations thereafter. In June 2012, the Veteran established care with the VA clinic. Upon assessment, PTSD and depression screenings were positive. Subsequent VA treatment records reflect diagnoses of depression and anxiety “rule out PTSD”. An August 2015 medical treatment record notes that the Veteran had “depression/anxiety” and had tapered off of his medication. The record notes that the Veteran was not receiving mental health treatment at the time. Additionally, the Veteran’s provider indicated that the Veteran “seems to have some minor issues” with past military service time that he had not yet processed fully and “seems to affect” his mental health. The August 2015 opinion of record is not adequate to render a decision. Medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. at 33; Bloom v. West, 12 Vet. App. at 187. Although the opinion provided in the August 2015 medical record is not sufficient to render a decision in this case, it is sufficient to trigger the VA’s duty to assist. As such, a VA examination and opinion is warranted to ascertain whether the Veteran’s acquired psychiatric disorder, to include PTSD, is etiologically related to his period of active service. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination regarding the nature and etiology of his claimed psychiatric disabilities. The electronic claims file must be made accessible to the examiner for review in conjunction with the examination. The examiner must complete the following: (a.) The examiner should identify all of the Veteran’s current psychiatric disorders. If any previously diagnosed disorder is not diagnosed, the examiner should provide a supporting explanation. (b.) If PTSD is diagnosed, the examiner should specify the stressor event on which the diagnosis is based, and indicate whether such diagnosis is related to a fear of hostile military or terrorist activity. (c.) For any other psychiatric disability diagnosed, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that each currently diagnosed psychiatric disorder had its onset in service or is otherwise related to the Veteran’s military service. The examiner should consider all relevant lay and medical evidence concerning symptoms in service, including the August 2015 medical opinion and reported sleep problems noted on the Veteran’s service entrance examination. An explanation for all opinions expressed must be provided. Rachel Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, Associate 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.