Citation Nr: 21071231 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-07 947 DATE: November 30, 2021 ORDER Service connection for peripheral neuropathy of the right lower extremity is granted. Service connection for peripheral neuropathy of the left lower extremity is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam War era; his in-service exposure to herbicide agents is therefore presumed. 2. The Veteran has been diagnosed with lower extremity peripheral neuropathy. 3. The evidence as to whether the Veteran's lower extremity peripheral neuropathy is early onset in nature and/or is due to exposure to herbicide agents is at least in equipoise. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from June 1966 to March 1970, to include service in Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a July 2015 notice of disagreement (NOD), the Veteran expressly limited his appeal to the issues addressed herein and also appealed a denial of entitlement to service connection for tinnitus. In a January 2017 rating decision, the RO granted the Veteran's claim for service connection for tinnitus. As the RO's January 2017 decision represents a full grant of the benefit sought on appeal with respect to tinnitus, that issue no longer remains on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). In February 2020, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Service connection for peripheral neuropathy of the right lower extremity is granted. 2. Service connection for peripheral neuropathy of the left lower extremity is granted. The Veteran contends that his current bilateral lower extremity peripheral neuropathy was incurred in or caused by service, as due to exposure to herbicide agents while serving in Vietnam. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure, to include early-onset peripheral neuropathy under circumstances where the neuropathy manifests to a degree of 10 percent or more within a year of the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.309(e). The Board must assess the credibility and weight of all the evidence to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 to the Veteran. As an initial matter, the Board notes that the Veteran has a current diagnosis of bilateral lower extremity peripheral neuropathy, as demonstrated by an April 2015 private treatment record, which reflects autonomic peripheral testing. The first element of service connection has therefore been established. Regarding an in-service event, the Board notes that military personnel records confirm that the Veteran served in Vietnam during the requisite time period, departing in November 1967. His exposure to herbicide agents is therefore presumed. The key issue for the Board is whether the Veteran's current peripheral neuropathy is directly or presumptively due to his service, to include as due to his presumed in-service exposure to herbicide agents. The Board notes that the medical opinion evidence of record as to the link between the Veteran's current peripheral neuropathy and his exposure to herbicide agents in service is in conflict. In a May 2011 submission, one of the Veteran's private providers, A.S., M.D. noted that the Veteran had been diagnosed with a herniated disc 12 years earlier (which would have been in 1999), and that he had onset of bilateral foot numbness which continued to worsen. The provider noted that magnetic resonance imaging (MRI) was consistent with an L5-S1 disc herniation, foraminal stenosis, and a collapsed disc at L5-S1. He opined that the Veteran's pain was likely related to some component of the disc herniations. The claims file also includes multiple statements from another private provider, G.M., M.D. In an April 2015 private treatment record, Dr. M. stated that the Veteran's neuropathy had been getting steadily worse since he first saw him in 2009, but that his symptoms had first started more than 30 years prior to that time. Dr. M. noted that the Veteran had significant exposure to herbicide agents while in Vietnam and diagnosed moderate to severe early-onset peripheral neuropathy, also noting that it was "probably" from exposure to herbicide agents. Dr. M. provided a second statement in January 2016 wherein he noted that he had strongly emphasized that the Veteran's nerve involvement was consistent with similar cases of neuro-toxicity of herbicide agents, and that it was his expert medical opinion that the Veteran's peripheral neuropathy with early onset was from direct exposure to herbicide agents during his service in Vietnam. Dr. M. provided a third statement in June 2019. In the June 2019 statement, Dr. M. noted that the Veteran had been suffering from neurological symptoms in his feet since the early 1970s, and that he had been exposed to herbicide agents while serving in Vietnam. He stated that his examinations of the Veteran over the previous ten years were consistent with a true early-onset peripheral neuropathy including sensory, some autonomic, and motor involvement. He further stated that autonomic testing was consistent with a peripheral neuropathy not consistent with a root level problem in the spine, and that while it was true that the Veteran had also had some comorbid problems with his back from a herniated disc, his foot symptoms would not be entirely explained by back troubles. Dr. M. explained that first, he had symmetrical foot symptoms, and radicular/disk problems tended to be more unilateral, and that second, the Veteran's foot symptoms had been present at least to a moderate level since the 1970s and the back only for roughly ten years. Dr. M. noted that most of his own treatment records for the Veteran had been lost due to Hurricane Sandy, but that he remembered that when he entered his clinic, it was felt that he had a superimposed radicular problem, but that most of his symptoms were truly from early-onset neuropathy. He noted that re-evaluation in April 2015 again supported early-onset neuropathy, and that sudomotor testing showed that there was a large autonomic component to the Veteran's neuropathy. He explained that autonomic neuropathy is not found with lower back radicular or disk problems, or if present, will usually indicate a superimposed peripheral and central problem, and that when assymetry is greater than 20 percent then a root problem is likely. He then noted that the Veteran had approximately 12 percent assymetry, which was very consistent with exposure to herbicide agents. Dr. M. then concluded that he felt strongly, and with a high degree of medical certainty, that it was at least as likely as not that the Veteran suffered from early-onset neuropathy that was consistent with exposure to herbicide agents during his service in Vietnam. Finally, the Veteran was afforded a VA examination in connection with his claim in July 2016. The examiner offered a negative nexus opinion, reasoning that the numbness in the Veteran's feet and lower extremities was due to lumbosacral disc disease at L5-S1. The Board finds Dr. M.'s opinions, and particularly his June 2019 opinion, to be competent, credible, and probative on the question of whether the Veteran's lower extremity peripheral neuropathy was incurred in service as a result of his exposure to herbicide agents. The opinion was based on review of the Veteran's record including his reports and his own treatment of the Veteran which spanned a 10-year period when he offered his June 2019 opinion, with a thorough rationale provided for the opinion given. Although Dr. S. in his May 2011 statement and the July 2016 VA examiner both opined that that Veteran's lower extremity neuropathy was most likely due to his back problems, Dr. M. addressed that possibility in his June 2019 statement and offered a reasoned explanation as to why the Veteran's back problems did not fully account for his neuropathy, including citation to the findings of objective sudomotor testing. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The evidence, at a minimum, gives rise to a reasonable doubt on the matter, and at the very least, the evidence as to the etiology of the Veteran's lower extremity peripheral neuropathy is evenly balanced. 38 C.F.R. § 3.102. Resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an award of service connection for bilateral lower extremity peripheral neuropathy have been met. The appeal of these issues is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that his hearing loss is due to noise exposure in service. The Veteran was afforded a VA examination in connection with his claim in November 2016. The examiner found that the Veteran had a current bilateral hearing loss disability for VA purposes, but offered a negative nexus opinion. She reasoned that the Veteran's enlistment examination in January 1966 and his separation examination in November 1969 revealed normal puretone thresholds from 500 to 6,000 Hertz, with no shifts in hearing seen in either ear. She noted that there was no evidence of hearing loss during service and that the Veteran's military occupational specialty (MOS) of administrative specialist had a low probability of noise exposure. The examiner then cited to a 2006 article by the Institute of Medicine (IOM) which indicated that there was no sufficient scientific basis for the existence of delayed onset hearing loss, and that while the IOM did not rule out the possibility that delayed onset hearing loss might exist, there was no reasonable basis for delayed onset hearing loss. The Board notes that for service department examinations conducted prior to January 1, 1967, unless otherwise indicated, VA assumes that audiometric testing was conducted using American Standards Association (ASA) measurements and converts the results of such testing to current International Standards Organization-American National Standards Institute (ISO-ANSI) measurements by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 When the Veteran was examined for service entry in January 1966, audiometric testing revealed the following results, in decibels (with the numbers in parentheses representing converted ISO-ANSI measurements): HERTZ 500 1000 2000 3000 4000 6000 Right Ear 10 (25) 10 (20) 0 (10) 5 (15) 0 (5) 5 (15) Left Ear 0 (15) 0 (10) 0 (10) 5 (15) 10 (15) 5 (15) At the time of his separation examination in November 1969, the Veteran denied having hearing loss. The examination specifically noted that ISO-ANSI measurements were used, with the following data obtained: HERTZ 500 1000 2000 3000 4000 6000 Right Ear 0 0 0 5 0 5 Left Ear 0 0 0 5 0 15 In analyzing the Veteran's case, the examiner did not convert the Veteran's January 1966 entrance examination scores from ASA to ISO-ANSI units. Further, the United States Court of Appeals for Veterans Claims (Court) has directed attention to the fact that the IOM report on which the examiner relied contains qualifying or contradictory aspects, which may impact the probative value of medical opinions that rely upon it. See McCray v. Wilkie, 31 Vet. App. 243 (2019). Under the circumstances, the Board will seek an addendum opinion. The Board acknowledges that the Veteran's private treatment provider, V.S., D.O. stated in a January 2016 submission that based upon the Veteran's medical history of loud noise exposure during service, it was his medical opinion that his bilateral hearing loss was causally related. While clearly supportive of the Veteran's claim, the Board finds Dr. S.'s January 2016 statement insufficient to support an award of service connection because it is not supported by any rationale. Updated records of any VA treatment should also be procured. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Arrange to provide the record on appeal to the VA examiner who previously offered an opinion with respect to the etiology of the Veteran's hearing loss in November 2016. The examiner should review the record. After reviewing the record, the examiner should be asked to provide an addendum opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's hearing loss had its onset in, or is otherwise attributable to, service, to include as due to in-service exposure to noise. In rendering the requested opinion, the examiner should consider the January 2016 opinion from Dr. S. The examiner should also consider that for service department examinations conducted prior to January 1, 1967, the Board ordinarily assumes that audiometric testing was conducted using ASA measurements and converts the results of such testing to current ISO-ANSI measurements by adding between 5 and 15 decibels to the recorded data. Here, applying the conversion to the audiometric data in the reports of the Veteran's January 1966 entrance examination yields the results set out in parentheses above, at page 8. In arriving at her conclusions, the examiner should refrain from placing any reliance on the 2006 study from the IOM, pertaining to delayed onset of hearing loss, which the Court has determined contains apparent qualifiers or contradictions that may impact the probative value of medical opinions that rely upon it. If the November 2016 examiner is no longer employed by VA or is otherwise unable to provide the opinion requested, arrange to obtain the requested information from another qualified examiner. The need for another in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete medical rationale for all opinions must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.