Citation Nr: 21071317 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-46 883 DATE: November 30, 2021 ORDER The appeal with respect to entitlement to service connection for stenosis of the left leg is dismissed. The previously denied claim of entitlement to service connection for bilateral hearing loss is reopened; to this limited extent, the appeal of that issue is granted. Service connection for tinnitus is granted. Service connection for left lower extremity neuropathy is granted. Service connection for right lower extremity neuropathy is granted. REMANDED Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected Type II diabetes mellitus, is remanded. FINDINGS OF FACT 1. On the record at a January 2021 hearing, prior to the promulgation of an appellate decision on the matter, the Veteran requested that the appeal with respect to entitlement to service connection for stenosis of the left leg be withdrawn. 2. In a July 2008 rating decision, the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio denied service connection for bilateral hearing loss; the RO mailed notification of its decision and of the Veteran's appellate rights to his address of record. 3. The Veteran did not initiate an appeal of the RO's July 2008 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 4. New evidence received since the time of the RO's July 2008 decision, when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for bilateral hearing loss and raises a reasonable possibility of substantiating the claim. 5. The evidence as to whether the Veteran's tinnitus had its onset in service or within a year of his separation from service is at least in equipoise. 6. The competent and credible evidence demonstrates that the Veteran's left lower extremity neuropathy is secondary to his service-connected Type II diabetes mellitus. 7. The competent and credible evidence demonstrates that the Veteran's right lower extremity neuropathy is secondary to his service-connected Type II diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal as to the issue of entitlement to service connection for stenosis of the left leg have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The RO's July 2008 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1100 (2018). 3. New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for an award of service connection for left lower extremity neuropathy have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. The criteria for an award of service connection for right lower extremity neuropathy have 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 on active duty in the U.S. Navy from April 1968 to May 1971. He also had service in the U.S. Naval Reserve. His decorations include the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. These matters come to the Board of Veterans' Appeals (Board) on appeal from August 2016 and November 2016 rating decisions issued by VAROs. The Veteran's claim for service connection for stenosis of the left leg was previously denied in a June 2016 rating decision; after receiving additional evidence, the RO again denied the claim in the August 2016 rating decision. The claims for service connection for hearing loss and tinnitus were previously denied in June 2016 and August 2016 rating decisions; after receiving additional evidence, the RO again denied the Veteran's claims in the November 2016 rating decision, and also denied service connection for bilateral lower extremity neuropathy. In its November 2016 rating decision, the RO appears to have found that new and material evidence was received to reopen the Veteran's claim for service connection for bilateral hearing loss, inasmuch as it found that the Veteran had a current hearing loss disability for VA purposes and adjudicated the claim on the merits. However, the Board is required to consider that question independently. See 38 U.S.C. § 7104(b); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Regarding the Veteran's claims for service connection for lower extremity neuropathy as due to Type II diabetes mellitus, the Board notes that the RO characterized those claims as previously disallowed claims requiring the receipt of new and material evidence. However, the Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, 133 Stat. 966 (2019) (BWNVVA) (now codified, in part, at 38 U.S.C. § 1116A) has since extended the presumption of exposure to herbicide agents to those veterans who served in the waters within the 12 nautical miles offshore of Vietnam during the Vietnam War era. The BWNVVA essentially codified the holding of Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019) (en banc), which held that Veterans who served in the 12 nautical mile territorial sea of the Republic of Vietnam are entitled to presumptive service connection under 38 U.S.C. § 1116 so long as they meet the section's other requirements. In a February 2020 memorandum, VA found that the Veteran served within 12 nautical miles of Vietnam during the requisite time frame and conceded his exposure to herbicide agents during service. As the BWNVVA created a new basis of entitlement, new and material evidence is not required to reopen the Veteran's previously denied claim for service connection for bilateral lower extremity neuropathy. See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994). Instead, the claim may be considered de novo. In January 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. Entitlement to service connection for stenosis of the left leg The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in an appeal. 38 C.F.R. § 19.55. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. Id. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. In this case, on the record at the January 2021 hearing, prior to the promulgation of a Board decision on the matter, the Veteran requested that his appeal with respect to entitlement to service connection for stenosis of the left leg be withdrawn. That request has since been reduced to writing in a transcript, received by the Board, which includes the Veteran's name and his VA file number. Under the circumstances, the Board finds that the requirements for a proper withdrawal have been satisfied. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). As the Veteran has withdrawn his appeal of this issue, there remain no allegations of error of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the issue and the appeal of the issue must be dismissed. 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. 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). The Veteran first filed a claim for service connection for bilateral hearing loss in April 2008. A July 2008 rating decision denied the claim. He was notified of the decision, and of his appellate rights, by letter dated that same month. No new and material evidence was received during the one-year period following mailing of notice of the decision. See 38 C.F.R. § 3.156(b). Nor did the Veteran initiate an appeal within that time frame. As a result, the RO's decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1100 (2018). Generally, a claim that has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis. The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has characterized the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 11 (2010). For purposes of determining whether new and material evidence has been received, the credibility of the evidence is to be presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Specific to claims for service connection for hearing loss, impaired hearing is considered a "disability" for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The July 2008 rating decision denied service connection for bilateral hearing loss because there was no link between the Veteran's hearing loss and his service. The decision also noted, however, that the Veteran was diagnosed with bilateral sensorineural hearing loss in February 2008. While acknowledging that the February 2008 VA treatment record to which the RO cited notes a diagnosis of hearing loss, the Board notes that it does not contain any audiometric scores, which are required to establish a hearing loss disability for VA purposes. The Board therefore finds that the evidence at the time of the RO's prior, final rating decision did not demonstrate that the Veteran had a hearing loss disability for VA purposes. This finding is further supported by the fact that in a subsequent, June 2016 rating decision, the RO found that there was no evidence that the Veteran had a current hearing loss disability for VA purposes. The evidence before VA at the time of the July 2008 decision consisted, in part, of the Veteran's service treatment records and his lay statements. The Board finds that new and material evidence has since been received. A July 2016 VA examination report contains audiometric scores which demonstrate a current bilateral hearing loss disability for VA purposes. This evidence demonstrates that the Veteran has a current disability, which relates to a previously unestablished fact and raises a reasonable possibility of substantiating the claim. It is therefore new and material. The claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection In addition to the rules outlined above, if a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseasesincluding organic diseases of the nervous systemto a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Service connection for tinnitus, to include as secondary to service-connected diabetes mellitus The Veteran contends that his tinnitus was incurred in or caused by service, as due to noise exposure. He stated in a June 2016 submission that he served aboard the U.S.S. Bonhomme Richard, that the continual hum of machinery aboard the ship and jet noises caused his tinnitus, and that hearing protection was not provided to the general crew. He also contended in a March 2020 submission that his tinnitus was secondary to his service-connected diabetes. In an October 1995 opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system. The Court has held that tinnitus is a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Moreover, the Court indicated that, as such a presumptive condition, tinnitus warrants consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board notes that there is no dispute that the Veteran has tinnitus, as demonstrated by a December 2019 VA examination. The Board also finds that the Veteran was exposed to hazardous noise during service, inasmuch as military personnel records confirm that he served aboard the U.S.S. Bonhomme Richard, an aircraft carrier, which is consistent with his reports of frequent exposure to hazardous noise from machinery and jet engines. As to the nexus, or link, between the Veteran's tinnitus and service, he is competent to provide statements with respect to the onset and presence of tinnitus, inasmuch as such symptoms are observable by a lay person. In this regard, the Board observes that the Veteran has made inconsistent statements regarding the presence and onset of tinnitus. In an August 2015 VA treatment record, the Veteran reported that he had constant bilateral tinnitus and that the onset was around ten years earlier. At a July 2016 VA examination, he reported that his tinnitus started in the early 1970s and that it was constant in both ears. At a December 2019 VA examination, he reported that his tinnitus began in the late 1970s or early 1980s. Finally, at his January 2021 hearing, he testified that he first noticed it when he came back from service, that he became aware of the term tinnitus only later, but that he had had the feeling that it had always been there. He further testified that it was "probably" present within a year after leaving service, explaining that that would have been 50 years ago. The Veteran explained in a March 2020 submission that his report to the December 2019 VA examiner that his tinnitus began in the late 1970s was a casual answer to an on-the-spot question. Giving the Veteran the benefit of the doubt, the Board finds his explanations reasonable, and that his statements with respect to onset in service or within a year of discharge are therefore credible. The Board acknowledges that the VA audiologists who examined the Veteran in July 2016 and December 2019 offered unfavorable opinions with respect to nexus. However, the examiners did not account for the Veteran's lay statements with regard to onset, or to the effect that he did not know the term tinnitus until sometime after his service. As such, the examiners' opinions in that regard are of limited probative value. On balance, and taking into account the totality of the evidence, including the Veteran's in-service noise exposure and his statements and explanations with respect to onset and continuity of symptoms, the Board is persuaded that the criteria for an award of service connection for tinnitus have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. Service connection for tinnitus is therefore granted. Inasmuch as the Board is granting the Veteran's claim for service connection for tinnitus on a direct basis, it need not address his contention that it is secondary to his service-connected diabetes. 4. Service connection for left lower extremity neuropathy as secondary to service-connected Type II diabetes mellitus 5. Service connection for right lower extremity neuropathy as secondary to Type II diabetes mellitus The Veteran contends that his bilateral lower extremity neuropathy is secondary to his diabetes. Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As an initial matter, the Board notes that the Veteran has a current diagnosis of bilateral lower extremity neuropathy, as demonstrated by an August 2016 VA treatment record which includes EMG (electromyography) testing. The Veteran is also currently service-connected for Type II diabetes mellitus. The primary question for the Board is whether the Veteran's lower extremity neuropathy is secondary to his diabetes or whether it is otherwise related to his service. The Veteran was afforded a VA examination in connection with his claims in December 2019. The examiner offered positive nexus opinions as to both extremities, reasoning that diabetes is a major cause of peripheral neuropathies per medical literature, that his diabetes had a direct cause and effect relationship to his area of service and exposure to herbicide agents, and that his lower extremity neuropathy was directly linked to his diabetes. The Board finds the December 2019 VA examiner's opinion the most probative evidence on the question of whether the Veteran's lower extremity neuropathy is secondary to his service-connected diabetes. Her opinion was based on review of the Veteran's record including his own reports, the medical records, and medical literature regarding the link between neuropathy and diabetes, with a thorough rationale provided for the opinion given. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). There are no negative medical opinions of record. In light of the above, the Board finds that the criteria for an award of service connection for left and right lower extremity neuropathy have been met. The appeal of these issues is granted. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss, to include as secondary to service-connected Type II diabetes mellitus, is remanded. The Veteran contends that his hearing loss was caused by service, as due to noise exposure. As noted, he stated in a June 2016 submission that he served aboard the U.S.S. Bonhomme Richard, that the continual hum of machinery aboard the ship and jet noises caused his hearing loss, and that hearing protection was not provided to the general crew. He also contended in a March 2020 submission that his hearing loss was secondary to his service-connected diabetes and cited to medical articles in support of that contention. He asserted, essentially, that his diabetes affected the nerve endings in his ears and caused damage, which in turn caused his hearing loss. The Veteran was afforded a VA examination in connection with his claim in July 2016. While the examination showed that the Veteran had a current hearing loss disability for VA purposes, the examiner offered a negative nexus opinion. She reasoned that a service treatment record (STR) from September 1967 showed a score of 15/15 on the whispered voice test, as did a subsequent STR. The examiner then noted that the Veteran's April 1971 separation examination showed normal hearing at all frequencies. The Veteran was afforded a second VA examination in connection with his claim in December 2019. The December 2019 VA examiner also offered a negative nexus opinion. She noted that no entrance audiogram was found, but that the Veteran's April 1971 exit audiogram showed normal hearing sensitivity, and that his hearing was not evaluated in a July 1972 reserve service STR. She further noted that she was unable to find documentation which stated the Veteran's military occupational specialty (MOS), but that one document said sales officer, where the Veteran reported that his MOS was in the supply office. The examiner stated that she was unsure of the probability of hazardous military noise exposure but noted the Veteran's report that he was exposed to loud noise when on aircraft carriers, being around the AC/HVAC/steam systems, being on the flight lines, that his state room was right below the flight deck, that he did not have hearing protection, and that his hearing loss began in the late 1970s or early 1980s. The examiner stated that this was after discharge and reasoned that due to the normal hearing on his exit audiogram and when he started to notice hearing loss, it was less likely than not that his hearing loss was due to hazardous military noise exposure. The Board notes that because the theory that the Veteran's hearing loss is secondary to his diabetes was not raised until March 2020, neither of the prior examiners was able to consider it, and neither examiner offered an opinion as to secondary service connection. Under the circumstances, a remand for an addendum opinion is warranted. 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 should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to the VA audiologist who examined the Veteran in December 2019. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's hearing loss was a) caused or b) has been aggravated (i.e., permanently or temporarily worsened beyond natural progression) by his service-connected diabetes. In so doing, the examiner should consider and address the medical articles to which the Veteran cited in his March 2020 submission, to the effect that there is a link between diabetes and hearing loss, as well as his contention that his diabetes caused damage to the nerve endings in his ears, which in turn caused his hearing loss. If the December 2019 VA examiner is no longer employed by VA or is otherwise unable to offer the requested opinion(s), arrange to obtain the 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(s) selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed 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.