Citation Nr: 21001756 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-23 745 DATE: January 11, 2021 ORDER Entitlement to service connection for a right eye condition is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. REMAND Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. A current vision condition, to include glaucoma and cataracts, did not begin during active service and was not otherwise incurred or aggravated as a result of an in-service injury or disease. 2. There is no current disability, to include peripheral neuropathy of the bilateral lower extremities, to account for the Veteran's complaints of burning in the feet. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right eye condition, to include glaucoma and cataracts, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from October 1958 to October 1966, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in April 2019. A transcript of this hearing has been associated with the claims file. As a preliminary matter, the Board notes that these issues were previously before the Board in January 2020, at which time the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. In consideration of this appeal, the Board is satisfied that there has been substantial compliance with its January 2020 remand directives, and as such, will proceed with appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Direct service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Service connection may also be granted for any disease diagnosed after discharged, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for a right eye condition is denied. The Veteran contends that he suffered a bilateral eye injury during his active duty service, and as such, is entitled to service connection for his current claimed right eye condition. Notably, service connection was granted for a left eye condition in October 2020. Regarding the remaining right eye condition, the Veteran asserts that during training, he was hit on the side of his head “with such force, that my head gear came off.” The Veteran contends that during this specific training, they were used a bayonet and pugil stick, and that after his head gear was removed, he was struck in the eye by a pugil stick. The Veteran reported that because of the intense pain, he fell to his knees and his drill instructor checked on him. However, the Veteran indicates that “nothing was said or done after that” and he was not instructed to go to sick bay or seek medical attention for the injury. See e.g., October 2013 statement; July 2015. As mentioned above, the first element of service connection is a current disability. This element has been met, as the most probative evidence reflects that the Veteran has been diagnosed with cataracts, bilaterally, as well as glaucoma. As such, the first element of service connection has been met. Regarding an in-service injury or event, the Veteran’s STRs reflect swelling of the right eye and brow in August 1964. However, the Veteran’s separation examination does not specify a defect of the right eye; rather, just notes that the Veteran has defective distant vision. See September 1966 separation examination, report of medical examination. The Veteran submitted private post-service treatment records from 2010 to 2012, reflecting that he underwent surgical procedures for conditions of his left eye. The pre-operative diagnoses provided were listed as keratoconus of the left eye and astigmatism of the left eye. There is no mention of the Veteran’s right eye in the treatment records. See private treatment records, receipt date of 05/23/2012. The Veteran also submitted an eye conditions disability benefits questionnaire (DBQ) completed by a private treatment provider, Dr. R. L. in June 2019. Regarding diagnoses, Dr. R. L. indicated that the Veteran was diagnosed with keratoconus and status post penetrating keratoplasty but did not specify in which eye. The private treatment provider noted that “patient experienced blunt trauma in 1958 in Marine boot camp, and progressive loss of vision since 1984.” The private treatment provider performed visual acuity testing. The private treatment provider indicated that the Veteran did not have severe irregular astigmatism, diplopia (double vision), any visual field defects, and scotoma. Dr. R. L. noted however, that the Veteran does have corneal eye conditions, glaucoma, and cataracts or lens conditions. Regarding the corneal eye conditions, the treatment provider indicated that the Veteran had a corneal transplant in the left eye and that the left eye was the only eye affected. Dr. R. L. noted that the Veteran also has irregular astigmatism following PKP, which resulted in a decrease in visual acuity, but did not indicate which eye is affected. Regarding cataract or lens conditions, the private treatment provider indicated that both eyes had cataracts removed; but that the Veteran’s decrease in visual acuity was not related to the cataracts. Regarding glaucoma, Dr. R. L. stated that the Veteran is “high risk glaucoma suspect” in both eyes. The private treatment provider indicating that the Veteran’s glaucoma requires continuous medication for treatment, but that the decrease in visual acuity was not related to the Veteran’s glaucoma. As a result of the Board’s January 2020 remand, a VA examination for the Veteran’s claimed eye conditions was obtained in October 2020. The October 2020 VA examiner indicated that the Veteran’s current eye conditions are as follows: keratoconus, left eye; corneal transplant, left eye; and posterior chamber intraocular lenses, bilateral eyes. The VA examiner noted that the Veteran’s current symptoms of his eye conditions are blurred vision. The VA examiner performed visual acuity testing and noted that the Veteran’s decreased vision is secondary to his keratoconus and corneal transplant of the left eye. The VA examiner opined that the only eye condition of the right eye (posterior chamber intraocular lenses or cataracts), “are most likely a normal development associated with aging, not military service. Therefore, the posterior chamber intraocular lenses are less likely than not incurred in or caused by the in-service illness, event, or injury.” There is no argument or suggestion that the October 2020 VA examination was inadequate or did not accurately reflect the nature of Veteran’s disabilities. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current right eye condition warrants service connection. The Board finds the October 2020 VA examination highly probative as to the issue of whether the Veteran’s current right eye disability was caused or aggravated by his active military service. In this regard, the October 2020 VA examiner makes clear that the Veteran’s injury to his face during service did in fact have an impact on his current left eye disability; however, the current right eye conditions, namely, cataracts and glaucoma, are such that are normally associated with the natural aging process and not precipitated by an injury or event. In summary, the preponderance of the evidence is against service connection for the Veteran's claimed right eye disability under any reasonably raised theory. There is no reasonable doubt to resolve in his favor, and the appeal is denied. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. The Veteran contends that he has peripheral neuropathy of the bilateral lower extremities, to include burning and tingling sensations in the feet, and that it is directly due to service, to include his presumed herbicide agent exposure in Vietnam. In addition to the theory of entitlement via direct service connection mentioned above, peripheral neuropathy will be presumed related to exposure to herbicide agents, including Agent Orange, during active service if the condition manifested to a degree of 10 percent or more within one year after the last exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6)(ii); 38 C.F.R. § 3.309(e). In this case, the Veteran has presumed herbicide agent exposure, based on his service in the Republic of Vietnam from August 1965 to June 1966. 38 C.F.R. § 3.307(a)(6). The first element of service connection is a current disability. This element has not been met, as the most probative evidence reflects that there has been no underlying diagnosis or other disability for the Veteran's foot complaints during the appeal period or recent in time to his claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no argument or indication that the Veteran's burning, tingling, or pain in the feet result in functional loss with impairment of earning capacity to constitute a disability on that basis. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Veteran is competent to report the nature and timing of his observable symptoms in the feet, as well as what he recalls his treating providers telling him about the underlying diagnosis or etiology of his complaints. However, he is not competent to provide a diagnosis or opinion as to the cause of his symptoms. This requires medical expertise and knowledge of the potentially involved neurologic and musculoskeletal systems to interpret the Veteran's history and relevant testing. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran first reported that he has been experiencing symptoms of neuropathy since 1968. The Veteran stated “[t]he bottoms of my feet are constantly burning and this condition worsens at night.” See e.g., October 4, 2013 statement; July 1, 2015 statement. During the April 2019 Travel Board hearing, the Veteran testified that he experiences neuropathy in both of his feet. The Veteran’s representative asserted that based on laboratory findings which indicate that the Veteran is “borderline diabetic”, the Veteran and his representative contend that his current claimed neuropathy may be related to a “pre-diabetic situation.” The Veteran described his neuropathy as “[m]y feet are burning like crazy, especially at night when I’m laying down.” VA treatment records reflect that the Veteran reported this burning in the soles of his feet to his primary care provider but does not currently require any medication for such symptoms. See e.g., December 19, 2018 VA primary care evaluation note. Additionally, the Veteran underwent an evaluation for Agent Orange conditions in September 2011. The Veteran reported burning in soles of feet at night “since 2002.” The treatment note also referenced that the Veteran worked as a machinist and stood all day. Upon diagnostic testing, the VA treatment providers found that “testing is abnormal, but not diagnostic of diabetes; still favor partial diabetic neuropathy. No conditions associated with Agent Orange at this time.” See September 8, 2011 Agent Orange program note. As a result of the January 2020 Board remand, the Veteran was afforded a VA examination to determine whether he had a current diagnoses of peripheral neuropathy of the bilateral lower extremities, and if so, whether or not it is related to his active duty service, to include exposure to herbicide agents during his service in the Republic of Vietnam. The Veteran was afforded a peripheral nerves conditions examination in September 2020. Upon examination, the VA examiner determined that the Veteran did not have a peripheral nerve condition or peripheral neuropathy. During the examination, the Veteran reported that onset of his symptoms began in 1966, when he felt “itching” on the bottoms of his feet, that became worse at night. The Veteran reported that he also has burning on both soles of his feet that has continued since then. The Veteran indicated that when working as a machinist following service, he was always on his feet, which exacerbated the problem. The Veteran reported serving in Vietnam, with over 13 operations, and did a “lot of walking in rice patties and had contact with Agent Orange as the boots leaked.” The VA examiner noted that the Veteran has no symptoms attributable to any peripheral nerve conditions. Upon muscle strength testing, the VA examiner that muscle strength for the bilateral lower extremities was all normal, with no muscle atrophy present. The VA examiner also performed a reflex examination, and sensory exam, with all normal findings for his lower extremities. The VA examiner stated “[t]here is no objective evidence on exam to diagnose a peripheral nerves condition. Symptoms are subjective only, therefore no diagnosis is warranted.” The VA examiner opined that the Veteran’s claimed condition (peripheral neuropathy of the bilateral lower extremities) was less likely than not incurred in or caused by an in-service injury, event, or illness. The VA examiner reasoned “[a]lthough the Veteran reports burning in the soles of his feet, no diagnoses was rendered due to a completely normal exam. Therefore, the claimed bilateral lower extremity neuropathy is less likely than not incurred in or caused by the presumed exposure to herbicide agents while he was in service.” The September 2020 VA examiner’s opinion is highly probative as to whether there is an underlying diagnosis for the Veteran's complaints. The examiner considered the Veteran's relevant history, including the nature and timing of his complaints and orthopedic conditions, and provided a rationale based on medical expertise. Although the Veteran's primary care provider noted neuropathy in 2011, subsequent specialized neurologic testing and evaluations in the September 2020 VA examination determined that there was no underlying diagnosis for his complaints of burning and tingling in the feet. The specialized results are more probative than the more general notations or reports by the Veteran in the VA treatment records for treatment of having neuropathy. In short, the most probative medical evidence does not show a current disability diagnosis. Moreover, the most probative evidence establishes that the Veteran's tingling and burning in the feet began many years after his active duty service. While the Veteran testified during the April 2019 Board hearing that his symptoms began at the end of his active duty service (and submitted statements in support of his claim relaying the same), the Veteran also reported during his September 2011 Agent Orange evaluation that his claimed neuropathy symptoms did not have onset until 2002, many years after his separation from military service. Since this statement was made in the course of seeking medical treatment and/or a medical evaluation, the Board considers this report by the Veteran more probative. The April 2019, October 2013 and July 2015 reports were made when the Veteran had an incentive to try to establish continuity to service, and it is inconsistent with his report in his. In sum, the weight of the evidence shows that the Veteran's burning and tingling in the feet began no earlier than 2002, many years after his service. In summary, the preponderance of the evidence is against service connection for peripheral neuropathy of the bilateral lower extremities under any reasonably raised theory. The appeal is denied. REMAND 3. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his current bilateral hearing loss disability is related to noise exposure he experienced during his active duty service. He has a currently diagnosed disability of hearing loss and was exposed to noise in service in his duties in radio operations in Vietnam. Thus, the question is whether there is evidence of a nexus between the current disability and the in-service noise exposure. The Veteran was first afforded a VA examination for his bilateral hearing loss claim in June 2013. Regarding etiology, the June 2013 VA examiner stated that the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service. As rationale, the June 2013 VA examiner indicated that while the Veteran served in the military from 1958 to 1966, the Veteran showed “normal bilateral hearing ability” at separation from the military in 1966. The Board’s January 2020 remand found the June 2013 VA opinion to be inadequate as it relied on the absence of documented in-service bilateral hearing loss, and did not address the Veteran’s competent reports as to onset and continuity of bilateral hearing loss since service. As such, the Veteran underwent a second VA examination for his bilateral hearing loss claim in September 2020. This opinion also found against a nexus. However, the audiologist relied on an Institute of Medicine report (Noise and Military Service, from September 2005) that concluded that based on current knowledge, noise induced hearing loss occurs immediately (i.e., there is no evidence to support delayed onset of noise-induced hearing loss years after exposure). The Court of Appeals for Veterans Claims (CAVC) has addressed the particular medical study cited in the medical opinion of record in a precedential legal opinion, in the case of McCray v. Wilkie, 31 Vet. App. 243 (2019). The Court held that if the Board relies on a negative medical opinion, it must address the Veteran’s arguments challenging the medical text supporting that opinion and assess the existence and impact of features of the underlying medical text evidence that may affect the probative value and adequacy of the medical opinion. With specific regard to the IOM study, the case references contradictory findings within the study that may lead one to a different conclusion as to the potential for delayed-onset hearing loss. Specifically, the study notes that there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure. It further notes that definitive studies to address this issue have not been performed. As this same study was relied on by the examiner in this case, the Board finds that the issue of contradictory findings in the IOM study has been reasonably raised by the record. An addendum opinion is required. The matter is remanded for the following: Obtain an addendum opinion to the September 2020 audiology opinion to determine whether it is at least as likely as not that the Veteran’s currently diagnosed hearing loss is related to his in-service noise exposure. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Note that the lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorder and service. Note also that if relying on the 2005 IOM study, explanation is required as to the report’s additional finding that “there is not sufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one’s lifetime, long after the cessation of that noise exposure.” Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.