Citation Nr: 21007270 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-31 679 DATE: February 9, 2021 ORDER The appeal for a rating in excess of 40 percent for lumbosacral strain is dismissed. The appeal for service connection for a lumbar spine spondylosis and degenerative disc disease (DDD), status/post surgery is dismissed. Service connection for radiculopathy of the right lower extremity (RLE) is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is granted. REMANDED Entitlement to service connection for Parkinson’s disease. Entitlement to service connection for right carpal tunnel syndrome (CTS). FINDINGS OF FACT 1. The Veteran had active service from July 1981 to January 2004. He is the recipient of the Combat Action Ribbon. 2. On February 25, 2020, the Veteran indicated that he wished to withdraw the appeals for an increased rating for lumbosacral strain and service connection for lumbar spine spondylosis and DDD. 3. Radiculopathy of the RLE was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service. Radiculopathy of the RLE is not causally or etiologically related to service or to a service-connected disability. 4. Bilateral hearing loss was not shown in service, was not shown to a compensable degree within one year of service, and symptoms were not continuous since service. Bilateral hearing loss is not causally or etiologically related to service. 5. Tinnitus has been continuous since service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to a rating in excess of 40 percent for lumbosacral strain have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2020). 2. The criteria for withdrawal of service connection for lumbar spine spondylosis and DDD have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2020). 3. Radiculopathy of the RLE was not incurred in service and is not caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.309, 3.317 (2020). 4. Bilateral hearing loss was not incurred during service. 38 U.S.C. §§ 1110, 1131, 5017 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2020). 5. Tinnitus was incurred during service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In February 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. Withdrawn Issues At the hearing, the Veteran indicated that he wished to withdraw his appeals for an increased rating for lumbosacral strain and for service connection for lumbar spine spondylosis and DDD. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. In the present case, the Veteran has withdrawn the appeal of these issues. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the claims for an increased rating for lumbosacral strain and for service connection for lumbar spine spondylosis and DDD, and they are dismissed. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Radiculopathy of the Right Lower Extremity The Veteran has claimed entitlement to service connection for a disability of the RLE as a result of his service-connected lumbosacral strain. Turning to the evidence, an August 2014 VA back examiner diagnosed lumbosacral neuritis and found that the Veteran had symptoms of radiculopathy in the RLE. Such symptoms were also documented in treatment notes. Therefore, the first element of service connection – a current disability – is met. As to an in-service incurrence, the Veteran indicated at the February 2020 hearing that his right leg disorder began with the in-service back injury. Nevertheless, service treatment records (STRs) show that he experienced nerve-type symptoms on the left side and left hip area, not the right. Complaint, treatment, or diagnosis of right side and leg symptoms were not documented. Thus, an in-service incurrence is not established for right-sided radiculopathy and the medical evidence does not support the appeal on a direct basis. As to secondary service connection, as noted, the Veteran has been diagnosed with radiculopathy in the RLE and is service-connected for lumbosacral strain. Therefore, the first two criteria of secondary service connection have been met. However, a medical nexus between a service-connected lumbosacral strain and RLE radiculopathy is not shown. Specifically, an August 2014 VA examiner found, in a March 2015 opinion, that the Veteran’s right leg symptoms were as likely as not related to his nonservice-connected lumbar spine disc diagnosis but less likely as not related to the service-connected lumbosacral strain. The examiner considered the Veteran’s medical history of an in-service lumbar spine injury when carrying suitcases upstairs and subsequent surgery, as well as his reports of current symptoms in the RLE. Notably, the Veteran did not describe a history of RLE symptoms in service. In addition, a May 2018 VA back examiner opined that it was less likely as not that the right lumbar radiculopathy was a progression or aggravation beyond its natural progression, by the Veteran’s service-connected lumbosacral strain. The examiner reasoned that radiculopathy was a progression of lumbar degenerative disease, including DDD and degenerative joint disease (DJD) and herniated nucleus pulposus (HNP) and was not caused by or the result of lumbar muscular strain. The examiner indicated that lumbar degenerative disease was the result of chronic weight bearing on the lumbar disc mechanism over a lifetime and radiculopathy was the result of radicular nerve impingement caused by the herniated disc, and not by the chronic muscular strain of the back. In forming this opinion, the examiner considered the Veteran’s history of onset of back pain in 1999 and RLE symptoms beginning in 2008. There is no contradictory competent opinion of record. Accordingly, the medical evidence does not support service connection on a secondary basis. Next, neuritis (as an organic disease of the nervous system) is a chronic disease under 38 C.F.R. § 3.309 and presumptive service connection will be considered. However, no chronic disease or injury was shown in service. As noted above, the STRs are silent for complaints of, treatment for, or a diagnosis of a neurological disorder of the RLE. Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis. Next, the medical evidence does not support presumptive service connection based on continuity of symptomatology since service. Specifically, the medical evidence shows neurological symptoms in the RLE first in 2008 when RLE radiculopathy was found via nerve conduction testing. The Veteran separated from service in January 2004. The medical evidence shows that symptoms of RLE disability did not develop until four years later. As such, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, the fact that the disorder did not manifest for several years after service does not support presumptive service connection on a “manifested to a compensable degree within one-year from separation” basis. Therefore, presumptive service connection on any basis is also not supported by the medical evidence for RLE radiculopathy. The Board has considered the Veteran’s lay statements that his RLE symptoms were caused by service or service-connected disability. At the February 2020 Board hearing, he testified as to his medical history, including having symptoms in service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examination obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. Moreover, as discussed, the symptoms documented in STRs were in the left lower extremity as opposed the RLE. Considering the above, the preponderance of the evidence is against the claim for service connection for a RLE disability, and there is no doubt to be otherwise resolved. As such, the appeal for RLE radiculopathy is denied. Bilateral Hearing Loss Hearing loss and tinnitus are recognized by VA as “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. §§ 3.303(b), 3.307, and 3.309 apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015). Turning to the evidence, a current diagnosis of hearing loss under VA regulations is not of record. In this respect, hearing loss is considered a disability for VA purposes when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz (Hz) 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. Test results at a September 2014 VA examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 10 15 LEFT 5 5 5 20 25 Speech audiometry revealed speech discrimination scores of 100 percent in each ear. Thus, the examination did not reflect a current hearing loss in either ear as defined by VA regulations. Further, a review of treatment notes does not reflect complaints, treatment, or diagnosis of hearing loss. Therefore, hearing loss is not currently shown. Absent a current diagnosis or functional impairment, there is no disorder for which service connection may be granted. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the medical evidence does not support the claim as there is no present disability. The Board has considered the Veteran’s lay statements that hearing loss was caused by service. At the February 2020 Board hearing, the Veteran testified that his wife had to speak loudly to be heard, and his wife concurred. Laypersons are competent to report symptoms because they experience or observe as this requires only personal knowledge as it comes to him through his senses. However, they are not competent to offer an opinion as to the diagnosis or etiology of the Veteran’s current disorder due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examination obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements. Considering the above, the preponderance of the evidence is against the claim for service connection for bilateral hearing loss, and there is no doubt to be otherwise resolved. As such, the appeal for bilateral hearing loss is denied. Tinnitus Regarding tinnitus, however, a disability was noted at the September 2014 VA examination. Therefore, the first element of service connection is met. As to the second element of service connection – an in-service incurrence – at the February 2020 Board hearing, the Veteran described noise exposure in service from his duties as a radioman and fire support coordinator, as well as during training and service in the Gulf War. Notably, his service records show that he was awarded the Combat Action Ribbon, denoting combat service. There is no evidence of record which tends to contradict his testimony. As such, the second element of service connection has been met. As to continuity, at the February 2020 hearing, the Veteran testified that he began to experience sporadic tinnitus in service about the time of discharge and that it had continued and begun to last longer over time. While there is an absence of complaints or treatment for tinnitus for many years after service separation, the Board has resolved reasonable doubt in his favor and finds that he had continuous symptoms of tinnitus since service separation and meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). The September 2014 VA examination indicated that the Veteran’s tinnitus was not due to his hearing loss as well as cited to an Institute of Medicine report that found that the evidence was insufficient to determine whether tinnitus could develop long after the cessation of noise exposure. However, the Board does not need to reach the weight assignable to the VA opinion because service connection is granted on a presumptive basis under 38 C.F.R. § 3.303(b) for the “chronic” disease of hearing loss (38 C.F.R. § 3.309(a)) based on a finding of “continuous” symptoms of hearing loss since service rather than on direct service connection. In sum, there is evidence of acoustic trauma in-service and continuous symptoms of tinnitus since service; therefore, tinnitus is presumed to have been incurred in service, and the appeal is granted. Because the Board is granting service connection on a presumptive basis based on continuous symptoms of tinnitus since service separation, all other service connection theories are rendered moot. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND With respect to Parkinson’s disease, a March 2015 examiner found that the Parkinson’s disease was a diagnosable multi-symptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis; however, did not consider the medical research submitted by the Veteran regarding brain damage in Gulf War veterans. Thus, a remand is needed for another opinion. In addition, the Veteran has indicated that the right CTS is made worse by his Parkinson’s tremors, but the medical opinion only addresses a connection between CTS and the service-connected lumbosacral strain. Therefore, an opinion is also needed as to whether right CTS was caused or aggravated by Parkinson’s disease. The matters are REMANDED for the following actions: 1. Undertake appropriate development to associate any outstanding, relevant treatment notes with the claims file. 2. Direct the claims file to a clinician to address the following: • If the Veteran’s Parkinson’s disease is (i) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (ii) a disease with a clear and specific etiology and diagnosis, is it at least as likely as not (50% probability or more) that Parkinson’s is related to a specific exposure event experienced by the Veteran during service in Southwest Asia? The clinician is asked to consider the Veteran’s assertions regarding exposure to chemicals and toxins during his Gulf War service, the medical literature of record pertaining to brain damage in Gulf War veterans, and his family history. The rationale for any opinion expressed must be provided. If the clinician is unable to provide the opinions requested, he or she should explain why. An examination need not be scheduled unless the clinician cannot answer the questions presented without one. 3. Direct the claims file to a clinician to address the following: • Is it at least as likely as not (a 50% probability or more) that the Veteran’s right CTS was incurred in service or caused by Parkinson’s disease. • In the alternative, is it at least as likely as not (50% probability or more) that the right CTS was aggravated beyond its normal progression by Parkinson’s disease. The rationale for any opinion expressed must be provided. The clinician is advised that the questions of causation and aggravation are distinct, and the rationales provided should also be distinct. If the clinician is unable to provide the opinions requested, he or she should explain why. An examination need not be scheduled unless the clinician cannot answer the questions presented without one. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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.