Citation Nr: 21000187 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-34 191 DATE: January 4, 2021 ORDER Entitlement to service connection for a neck condition, to include a pinched nerve, is denied. Entitlement to service connection for residuals of a cold injury of the bilateral hands is denied. Entitlement to service connection for residuals of a cold injury of the bilateral feet is denied. Entitlement to a compensable initial rating for bilateral sensorineural hearing loss (SNHL) is denied. REMANDED Entitlement to service connection for a low back condition, to include a pinched nerve, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a low back pinched nerve condition, is remanded. Entitlement to service connection for tingling in hands, to include pain along pathway to hands, to further include as secondary to a low back pinched nerve condition, is remanded. Entitlement to service connection for chest pain, to include as secondary to a low back pinched nerve condition, is remanded. Entitlement to service connection for a skin condition is remanded. FINDINGS OF FACT 1. The competent evidence does not demonstrate that the Veteran’s neck condition is attributable to his active service or to any incident of service. 2. The competent evidence does not demonstrate that the Veteran currently has a diagnosable residual condition of a cold injury to the bilateral hands, nor has he experienced such a condition during the pendency of the appeal or recent to the filing of the claim. 3. The competent evidence does not demonstrate that the Veteran currently has a diagnosable residual condition of a cold injury to the bilateral feet, nor has he experienced such a condition during the pendency of the appeal or recent to the filing of the claim. 4. During the entire pendency of the appeal, the Veteran’s bilateral SNHL was not manifested by more than Level II hearing loss in the right ear and Level I hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a neck condition are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303(a), (b), (d). 2. Service connection for a residual condition of a cold injury to the bilateral hands is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 3. Service connection for a residual condition of a cold injury to the bilateral feet is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. § 3.303. 4. The criteria for a compensable rating for bilateral SNHL have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to September 1969. These matters were last before the Board in December 2018, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a September 2020 supplemental statement of the case continuing the denial of each of the enumerated issued listed above, the case was returned to the Board for its adjudication. The Board notes that any possible claim for TDIU is moot as the Veteran is already in receipt of a 100 percent disability rating for the entirety of the appeal period. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Furthermore, the Veteran is also already in receipt of special monthly compensation at the (s) rate for the entirety of the appeal on account of his having a 100 percent rating for a single disability and additional service-connected disabilities independently ratable at 60 percent or more. Bradley v. Peake, 22 Vet. App. 280 (2008). Service Connection Entitlement to service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  1. Neck Condition The Veteran asserts that he has a neck condition, characterized as a pinched nerve, that he incurred in service. In the alternative, he contends that he developed a neck condition after his discharge from service that is nevertheless attributable to his service. He seeks service connection for the condition based on either theory of entitlement. The question for the Board is whether the Veteran has a neck condition, to include a pinched nerve, that began during service or is at least as likely as not related to an in-service injury, event, or disease.  The Board concludes that, while the Veteran has been diagnosed with various neck conditions, to include a pinched nerve, the preponderance of the evidence is against a finding that any neck condition began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). To begin, a review of the Veteran’s service treatment records does not show that he ever complained of neck pain, nor was he ever diagnosed with or treated for the same. There are records documenting the Veteran’s complaints of and treatment for low back pain, but there are no corresponding records showing that the Veteran ever complained of associated neck pain. No upper extremity abnormalities were noted on the September 1969 discharge examination or on the associated September 1969 Report of Medical History. On this basis, the Board concludes that any diagnosable neck condition did not develop in service, and so service connection for a neck condition on a direct basis under 38 C.F.R. § 3.303(a) is denied. Moreover, available medical records do not document any specific treatment for a neck condition prior to 2004, although private medical records do show that the Veteran was first evaluated with having neck pain as early as 1999. On the basis of a December 2006 radiographic examination, the Veteran was diagnosed with cervical spondylosis. VA medical records beginning in July 2011 show that at the time of his initial evaluation the Veteran reported experiencing neck pain that was assessed as a pinched nerve. An August 2012 outpatient note indicates that the Veteran experienced some relief of cervical symptomatology with exercise. Subsequent records both private and through VA do show that neck pain, characterized by a variety of diagnoses, has been listed as an active problem; however, there are no further records showing specific treatment for neck pain or which associate the neck pain with service. There is no medical evidence that supports a determination that the cervical spine symptoms began within the one-year presumptive period for chronic disease. 38 C.F.R. § 3.309; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, service connection also may not be granted based on continuity of symptomatology as there is no objective medical evidence of the claimed disability in service or continuity of symptomatology since service. 38 C.F.R. § 3.303(b). Pursuant to the Board’s December 2018 Remand instructions, the Veteran was afforded a VA neck examination in August 2020, during which he reported that he had been experiencing neck pain since he began basic training in service. According to the Veteran, he continued to experienced neck intermittently after his discharge up until about 20 years prior to the examination, when he began to experience chronic radiating pain, numbness, and tingling throughout his upper extremities. After an in-person evaluation and a review of the claims file, the examiner set forth a diagnosis of degenerative arthritis of the cervical spine. The examiner then opined that it was less likely than not that any neck condition was incurred in or otherwise attributable to service. In support thereof, the examiner noted the lack of in-service treatment for cervical symptomatology, as well as the over 30-year gap between the Veteran’s discharge and the first indication of neck pain in 2004. Upon review of the available evidence, the Board does not find that service connection is warranted for a neck condition. The Veteran’s contention that his neck condition is attributable to service was refuted by the August 2020 VA examiner, who found no evidence that the Veteran experienced cervical symptomatology in service and for several years thereafter. The Board finds highly probative the opinion of the August 2020 examiner, as it was based upon a thorough review of the claims file and the Veteran’s medical history. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board further notes that the Veteran has submitted no objective medical evidence in support of his assertion that his neck condition is attributable to service. While the Veteran’s contentions regarding the onset of his cervical symptomatology are credible, he is not competent to provide an opinion regarding the etiology of the claimed neck condition, as he has not shown that he possesses the medical expertise to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, his lay assertions are far outweighed by the highly probative etiology opinion of the August 2020 VA examiner. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In summation, the Board must rely on the medical evidence of record, which overwhelmingly weighs against a grant of service connection in this matter. Accordingly, the Board finds that no medical nexus exists between the Veteran’s neck condition and service. The claim is denied, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(d). 2. Cold Injury Residuals of the Hands and Feet The Veteran contends that he experiences residual symptomatology impacting his bilateral hands and feet that is attributable to cold injuries he sustained while in service. As the evidence in support of both claims is largely identical, the Board will consider them together. To that end, without delving into the question of the potential etiology of the claimed residual conditions, the Board finds that the Veteran has never been diagnosed with a residual condition impacting either the feet or hands that is attributable to an in-service cold injury, and there is no evidence to suggest that such a diagnosis is appropriate; as such, entitlement to service connection must be denied. A review of available VA and private medical records does not reflect that the Veteran has ever been diagnosed with or treated for a residual condition impacting either the feet or hands that is attributable to an in-service cold injury. During the April 2018 hearing, he acknowledged that he had never been diagnosed with a cold injury residual condition, but still detailed that his hands and feet would get very cold and start to burn if the temperature outside was cold. VA and private medical records do show that the Veteran reported in July 2011 when he established care through VA that his hands and feet were sensitive to cold. More recently, an March 2019 outpatient note indicates that the Veteran was still complaining of experiencing cold hands and feet and dry skin at his fingertips and tips of his toes that he attributed to cold exposure during service. At no point during the appeal period has any treating medical professional have ever diagnosed the Veteran with a chronic disability characterized by cold hands and feet which is attributable to cold exposure in service. Pursuant to the Board’s December 2018 Remand instructions, the Veteran was afforded a VA examination in August 2020 to evaluate the nature and likely etiology of the claimed cold injury residual conditions. He reported that he was exposed to extreme cold during his service and that his hands and feet were very cold. According to the Veteran, since service his hands and feet have remained very sensitive to cold; moreover, he detailed that he experienced burning and aching pain in both his hands and feet. A physical evaluation revealed cold sensitivity and color changes in both the hands and feet bilaterally. The examiner also noted a history of venous insufficiency and varicose veins, which were diagnosed in 2001, as well as tinea corporis in both hands and mild dermatitis in both lower legs, which was diagnosed in 2012. After concluding the in-person examination and reviewing the claims file, the examiner found that there was no evidence of a cold weather injury residual condition. As a result, the examiner found that it was less likely than not that the Veteran had a cold weather injury residual condition of the hands or feet that was incurred in or otherwise attributable to service. Ultimately, there is no competent evidence that the Veteran has a cold weather injury residual condition impacting either the bilateral hands or feet, or symptomatology that suggests that a diagnosis of such conditions would be appropriate. Moreover, as the August 2020 examiner performed an in-person evaluation and thoroughly reviewed the claims file prior to determining that the Veteran did not have a diagnosable cold weather injury residual condition that impacted the hands or feet, the Board concludes that this examination is the most probative evidence of record. Sklar v. Brown, 5 Vet. App. 140 (1993). Accordingly, without supporting records, the Board finds that the Veteran does not have a cold weather injury residual condition impacting either the bilateral hands or feet and has not had such conditions during the appeal period. The Veteran himself does not have the medical training or credentials to offer an opinion as to a diagnosis or its etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection is denied for both claimed conditions. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). Entitlement to a Compensable Rating for Bilateral SNHL The Veteran contends generally that a compensable rating is warranted for his bilateral SNHL. The Rating Schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of the 1000, 2000, 3000, and 4000 Hertz (cycles per second). The audiometric test results are then translated into a numeric designation ranging from Level I to Level XI, in order to evaluate the degree of disability from bilateral service-connected defective hearing. Id. In addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Even if an audiologist’s description of the functional effects of a veteran’s hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. The Veteran was first afforded a VA audiology examination during the appeal period in October 2012. Audiometric testing revealed the following puretone thresholds: 1000 2000 3000 4000 RIGHT 5 0 60 55 LEFT 10 30 65 60 The average puretone threshold in the right ear was 30 and in the left ear was 41. Speech audiometry using the Maryland CNC test revealed a speech recognition score of 96 percent in the right ear and 94 percent in the left ear. As for the functional impact of the hearing loss, it was the examiner’s impression that it did not impact the Veteran’s ordinary conditions of daily life. Applying the results from the October 2012 examination to Table VI under the 38 C.F.R. § 4.85 criteria shows Level I hearing impairment in both ears. See 38 C.F.R. § 4.85 Table VI, Diagnostic Code 6100. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable evaluation for bilateral hearing loss under Diagnostic Code 6100. The Veteran was next afforded a VA audiology examination in April 2016. Audiometric testing revealed the following puretone thresholds: 1000 2000 3000 4000 RIGHT 10 10 65 70 LEFT 10 30 70 65 The average puretone threshold in the right ear was 39. The examination report erroneously lists the average pure tone threshold in the left ear as 30, but it is in fact 44, based upon the results cited above. Speech audiometry using the Maryland CNC test revealed a speech recognition score of 90 percent in the right ear and 98 percent in the left ear. As for the functional impact of the hearing loss, the Veteran reported that he had to wear hearing aids or he could not hear anything. Applying the results from the April 2016 examination to Table VI under the 38 C.F.R. § 4.85 criteria shows Level II hearing impairment in the right ear and Level I hearing impairment in the left ear. See 38 C.F.R. § 4.85 Table VI, Diagnostic Code 6100. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable evaluation for bilateral hearing loss under Diagnostic Code 6100. Pursuant to the Board’s December 2018 Remand instructions, the Veteran was afforded a new VA audiology examination in August 2020. Audiometric testing revealed the following puretone thresholds: 1000 2000 3000 4000 RIGHT 10 15 65 70 LEFT 15 35 70 65 The average puretone threshold in the right ear was 40 and in the left ear was 46. Speech audiometry using the Maryland CNC test revealed a speech recognition score of 94 percent in both ears. As for the functional impact of the hearing loss, it was the examiner’s impression that the hearing loss did not have any impact on the Veteran’s ordinary conditions of daily life. Applying the results from the April 2016 examination to Table VI under the 38 C.F.R. § 4.85 criteria shows Level I hearing impairment in both ears. See 38 C.F.R. § 4.85 Table VI, Diagnostic Code 6100. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable evaluation for bilateral hearing loss under Diagnostic Code 6100. In addition to the medical evidence above, the Board has considered the lay evidence provided by the Veteran. Specifically, during the April 2018 hearing, the Veteran stated that he had difficulty understanding conversation, especially when talking in a group. A layperson’s testimony is competent evidence regarding the symptoms he experiences. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). However, disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As such, the medical evidence is considered the most probative evidence with regard to the level of severity of the Veteran’s service-connected hearing loss. Moreover, the three examiners of record VA considered the functional effects of the Veteran’s hearing loss during each examination, and none of those examiners concluded that the condition contributed to any significant impairment of functioning. Martinak, 21 Vet. App. at 455. Based on the foregoing, the evidence of record shows that a compensable rating is not warranted for the bilateral SNHL at any point during the appeal period. Both the Veteran’s contentions and the examiners’ findings of record do not reflect a disability picture, in terms of functional effects, that is not fully consistent with the pure tone thresholds shown upon examination and the corresponding rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). REASONS FOR REMAND 1. Service Connection for a Low Back Condition The Board in its December 2018 remand instructed the AOJ to secure an addendum opinion regarding the likely etiology of the low back condition. Specifically, the Board directed the chosen examiner to opine as to whether the Veteran had a low back condition that clearly and unmistakably preexisted service and, if so, whether the preexisting low back condition clearly and unmistakably was not aggravated by service. Furthermore, the examiner was asked to also opine as to whether a low back condition was incurred or was otherwise attributable to service, regardless of the answer to the preceding query. In the resulting August 2020 opinion, the chosen VA examiner found that the Veteran clearly and unmistakably had a preexisting low back condition that clearly and unmistakably was not aggravated by service. In support thereof, the examiner referred to a notation on the April 1967 Report of Medical History in which the Veteran detailed that he had experienced a back injury when he was involved in a motor vehicle accident prior to service in September 1965. In addition, the VA examiner also found that it was less likely than not that the Veteran had a low back condition that was incurred in service or was otherwise attributable to service. In support of this conclusion, the examiner noted that there was only one isolated instance of the Veteran seeking treatment for back pain in service, with no subsequent treatment or documentation at the time of separation. The Board cannot rely on this opinion for a number of reasons. To begin, despite specifically highlighting in the prior remand instructions that the Veteran’s reporting of a history of a back injury did not necessarily support a determination that he had a preexisting back condition at the time of his entrance into service, the August 2020 examiner appeared to have once again relied on the Veteran’s reported history of a low back injury as definitive evidence of a diagnosable condition at the time of his entrance into service. Without any further rationale, the Board does not find that this conclusion satisfies the clear and unmistakable standard required for a determination regarding the preexisting nature of the purported low back condition. More importantly, however, the examiner stated that there was no further evidence of an in-service low back condition other than one isolated record documenting treatment for back pain in December 1968, despite the fact that the Veteran reported a history of experiencing low back pain in service on the September 1969 Report of Medical History. The examiner did not discuss this positive evidence, and thus the opinion cannot be relied upon, based as it is on an inaccurate factual premise. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Under these circumstances, the Board finds that remand is again necessary in order for the AOJ to secure an opinion which complies with the prior remand instructions, which are copied in large part below. Stegall v. West, 11 Vet. App. 268 (1998). 2. Service Connection for Sleep Apnea, Tingling in Hands, and Chest Pain The Veteran contends that his sleep apnea, tingling in the hands, and chest pain are all secondary to his low back condition. As stated in the Board’s previous Remand instructions, a favorable decision on the claim for service connection for a low back condition could impact upon the Veteran’s claims seeking service connection for sleep apnea, tingling in the hands, and chest pain. Thus, the Board finds that these issues are inextricably intertwined, and must be remanded along with the low back condition claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. Entitlement to Service Connection for a Skin Condition The Board in its December 2018 Remand instructions directed the AOJ to secure an addendum opinion regarding the likely etiology of the claimed skin condition. Specifically, the Board noted that the prior March 2013 skin examination and opinion were deficient because the examiner did not address the etiology of the Veteran’s diagnosed dermatitis or eczema and instead focused only on psoriasis. Furthermore, the examiner offered no rationale for the determination that any in-service manifestation of dermatological symptomatology could not have led to the development of the Veteran’s currently diagnosed skin condition. In the resulting August 2020 opinion, the chosen VA examiner found that it was less likely than not that the Veteran had a skin condition that was incurred in service or was otherwise attributable to service. In support of this conclusion, the examiner noted several instances of the Veteran having undergone treatment for a skin condition in service, but inexplicably still concluded that there was no documentation of a chronicity of care. The Board cannot rely on this opinion in light of this incongruous determination. Moreover, the Board highlights that the Veteran underwent additional treatment for skin conditions impacting several areas around his body that were not specifically discussed by the examiner which further suggest that there was a chronicity of care for dermatological symptoms in service. Accordingly, remand in necessary in order to secure an addendum opinion that fully considers the copious evidence of record showing that the Veteran underwent extensive treatment for dermatological symptomatology in service. Barr, supra. The previous remand instructions are copied in large part below. Stegall, supra. The matters are REMANDED for the following action: 1. Return the claims file to the August 2020 VA examiner, or to another qualified VA medical professional if that individual is not available, for the purpose of eliciting an addendum opinion as to the likely etiology of the low back condition. The entire claims file, to include a complete copy of this Remand, must be made available to the chosen examiner, and that individual must indicate that they reviewed the entire file prior to setting forth any opinion as to the likely etiology of the low back condition. After a thorough review of the claims file, the examiner is asked to opine as to whether any low back condition, to include pinched nerves, clearly and unmistakably preexisted active service, and, if so, whether the disability was clearly and unmistakably NOT aggravated beyond natural progression during active service. “Clear and unmistakable” evidence is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003). Regardless of whether there is the required clear and unmistakable evidence to satisfy this two-prong analysis, i.e., to establish the preexistence of a low back condition and that it was not aggravated during or by the Veteran’s service beyond its natural progression, the examiner is asked to alternatively consider whether it is at least as likely as not (a 50 percent probability or higher) that the Veteran’s low back condition had its onset during service or is otherwise related to active service. It is essential the examiner discuss the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. 2. Return the claims file to the August 2020 VA examiner, or to another qualified VA medical professional if that individual is not available, for the purpose of eliciting an addendum opinion as to the likely etiology of any diagnosable skin condition. The entire claims file, to include a complete copy of this Remand, must be made available to the chosen examiner, and that individual must indicate that they reviewed the entire file prior to setting forth any opinion as to the likely etiology of the skin condition. After a thorough review of the claims file, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent probability or higher) that the Veteran’s skin condition had its onset during service or is otherwise related to active service. The Board specifically requests that the examiner consider, and comment upon as necessary, the numerous in-service records documenting the Veteran’s treatment for dermatological symptoms through his period of service, to include on his back, groin area, face, and legs. It is essential the examiner discusses the underlying rationale of all opinions expressed, preferably citing to relevant evidence in the file supporting conclusions and/or medical literature or authority. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.