Citation Nr: 21002084 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-16 990 DATE: January 12, 2021 ORDER An effective date of July 16, 2012 for the award of service connection for right lower extremity peripheral neuropathy is granted. An effective date of July 16, 2012 for the award of service connection for left lower extremity peripheral neuropathy is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDING OF FACT The Veteran’s initial claim for entitlement to service connection for bilateral lower extremity peripheral neuropathy was received on July 16, 2012 and he was shown at that time to have a diagnosis of the claimed disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of July 16, 2012, but no earlier, for the award of service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.155, 3.156(c), 3.400. 2. The criteria for entitlement to an effective date of July 16, 2012, but no earlier, for the award of service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.155, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. This appeal to the Board of Veterans’ Appeals (Board) is from October 2013 and July 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of the hearing has been associated with the record. The Veterans Law Judge who conducted the hearing is no longer employed at the Board. In February 2018, the Veteran was notified that the Veterans Law Judge that conducted the hearing is no longer available to adjudicate the claim and that he had the opportunity to testify at another hearing. See 38 U.S.C. § 7107; 38 C.F.R. § 20.707. However, in a March 2018 response, the Veteran indicated that he did not want an additional hearing. In a February 2016 decision, the Board denied entitlement to service connection for bilateral hearing loss. The Veteran appealed the portion of the Board’s February 2016 decision that denied service connection for hearing loss to the United States Court of Appeals for Veterans Claims (Court). In an August 2017 memorandum decision, the Court vacated the Board’s February 2016 decision and remanded the claim for further development. The Board remanded the matter in April 2018 and November 2019. Effective Date 1. Entitlement to an effective date prior to March 27, 2105 for the grant of service connection for right lower extremity peripheral neuropathy 2. Entitlement to an effective date prior to March 27, 2105 for the grant of service connection for right lower extremity peripheral neuropathy In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Veteran’s initial claim for service connection for bilateral lower extremity peripheral neuropathy was received on July 16, 2012. The Veteran reported he had nerve damage manifested by a burning in the soles of his feet. See July 2012 Veterans Application for Compensation or Pension. This claim was denied in an October 2013 rating decision, and the Veteran subsequently perfected his appeal. During the course of the appeal, he raised a claim for service connection for diabetes mellitus, type II (diabetes) based on exposure to herbicide agents while service in Vietnam. See March 2015 Veteran Supplemental Claim. This claim was granted in a June 2015 rating decision, effective March 27, 2015, which is the date the claim for diabetes was received. In a July 2016 rating decision, the RO granted service connection for bilateral lower extremity peripheral neuropathy as related to the service-connected diabetes and established an effective date of March 27, 2015 on the basis that this was the date entitlement arose. Although diabetes was not diagnosed until March 2015, his VA treatment records clearly show that he had complaints of bilateral peripheral neuropathy for years prior to the diabetes diagnosis in March 2013. In April 2012, he reported having burning and pain in his feet for more than three years and the assessment was peripheral neuropathy. See April 2013 and March CAPRI records. Although his diagnosis of peripheral neuropathy predated the diagnosis of diabetes, the April 2016 VA examiner who linked the Veteran’s peripheral neuropathy to diabetes also noted that diabetes can begin prior to the actual diagnosis, as it is frequently not diagnosed or diagnosed late in its (the diabetes) course. The physician stated that in this case, the neuropathy has been miscategorized as “idiopathic,” a diagnosis given when there is no reasonable cause. The evidence of the record supports that the neuropathic symptoms began approximately 2009. See Frost v. Shulkin, 29 Vet. App. 131, 134 (2017) (explaining that for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred). Since the initial claim was still pending when the subsequent claim for diabetes was raised and the probative evidence shows that peripheral neuropathy related to diabetes existed as early as 2009, the effective date for service connection is established as July 16, 2012, the date the initial claim for benefits was received. REASONS FOR REMAND 3. Entitlement to service connection for a bilateral hearing loss disability is remanded. This matter must be remanded for a supplemental opinion to obtain further clarification. The audiologist who offered opinions in May and December 2019 only noted the findings for the pre-induction and induction examinations dated February 7, 1966 and October 18, 1966. However, the Veteran’s service treatment records also contain another version of the examination report that contains additional examination findings that appear to have been obtained the following day on October 19, 1966. Pure tone thresholds, in decibels, were as follows for each of the three examinations: February 7, 1966 HERTZ 500 1000 2000 3000 4000 RIGHT 15 (30) 15 (25) 15 (25) 40 (50) 45 (50) LEFT 15 (30) 15 (25) 15 (25) 35 (45) 40 (45) October 18, 1966 HERTZ 500 1000 2000 3000 4000 RIGHT 20 (35) 15 (25) 15 (25) 35 (45) 45 (50) LEFT 15 (30) 10 (20) 5 (15) 35 (45) 40 (45) October 19, 1966 HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 0 (10) 0 (10) NT 40 (45) LEFT 0 (15) 0 (10) 0 (10) NT 30 (35) The Board notes that the findings found in parentheses represent the hearing threshold after being converted to ISO. See April 2015 STR – Medical. The clinician must be asked if consideration of these results alters any opinion previous reported. Upon separation in August 1968, audiometric readings were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 5 (15) 5 (15) NT 50 (55) LEFT 10 (25) 5 (15) 5 (15) NT 30 (35) (Continued on the next page)   The matter is REMANDED for the following action: Return the claims file to the December 2019 audiologist who provided opinions regarding whether the Veteran’s bilateral hearing loss was caused by or aggravated during service. In addition to reviewing the whole file, the clinician must specifically review the opinions offered in December 2019 in light of the additional induction examination findings on October 19, 1966 that are also noted in the body of the remand and state whether or not her opinions change in light of these findings. The clinician must provide an explanation for why the opinions are or are not changed. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.