Citation Nr: 21013324 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-21 448 DATE: March 9, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to a compensable disability rating for bilateral hearing loss denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability did not have its onset during active service, nor is it otherwise related to service. 2. The results of the audiological evaluation have indicated the Veteran has no worse than Level II hearing impairment in his right ear and Level II hearing impairment in his left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to December 1967, and from September 2002 to February 2003, with additional National Guard service. This matter is before the Board of Veterans’ Appeals (Board) on appeal of August 2015 and February 2019 rating decisions of the Department of Veterans Affairs (VA). In February 2019, the Board remanded the issues of service connection for a cervical spine disability, service connection for peripheral neuropathy of the bilateral upper and lower extremities and the increased rating claim for bilateral hearing loss, in addition to the issue of service connection for a psychiatric disability for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2020, the Board remanded the issue of service connection for a lumbar spine disability for further development. Id. Subsequently, in October 2020, the RO issued a rating decision granting service connection for a psychiatric disability. As the Veteran has not appealed either the evaluation or effective date assigned to this disability, this matter is not before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Of note, some of the Veteran’s service personnel records and service treatment (STRs) records have been obtained. A VA request for information dated in September 2020 shows that VA has been unable to obtain the all of the Veteran’s service personnel records and STRs. The Board is mindful that, in a case such as this, where some STRs are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While it is unfortunate that the Veteran’s STRs are unavailable, this appeal must be decided on the evidence of record and, where possible, the Board’s analysis has been undertaken with this heightened obligation set forth in Cuevas and O’Hare in mind. Post-service VA treatment records have also been obtained. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Board has reviewed the Veteran’s available STRs and post-service medical records. The Veteran asserts that he was exposed to Agent Orange in Vietnam and chemicals and burn pits in Kuwait. VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran’s service in Vietnam is confirmed by his military personnel records; therefore, Agent Orange exposure is conceded. For these Vietnam War Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of this case, the Board notes that the list of diseases associated with exposure to certain herbicide agents does not include lumbar spondylosis. 38 C.F.R. § 3.309(e). As such, the Veteran cannot avail himself of the presumptive provisions to establish entitlement to service connection for the claimed condition. Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). That is to say, the Agent Orange presumption does not preclude a Veteran from establishing direct service connection. The Veteran’s STRs are silent for treatment or complaints for any lumbar problems. The Veteran was afforded a VA examination in January 2019. The Veteran reported daily flare-ups, loss of ambulation, and standing tolerance. A diagnosis of lumbar spondylosis was provided. The VA examiner stated that the condition was not related to any environmental hazards and that the condition was due to aging. A June 2019 private medical note shows that the private doctor, Dr. MQ, stated that the Veteran referred his low back pain with paralumbar spine muscles with stiffness, numbness, tingling and sensorial loss with cramps and weakness and instability radiating to hips, knees and ankles. It was noted that the Veteran took medication for his condition. The private examiner opined that the Veteran’s musculoskeletal disease was more probable than not secondary to his military service performance. In a July 2020 medical addendum, the VA examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner stated that after a review of the Veteran’s medical records, there was no evidence of any possible traumas, treatments, or factors during active service, or the years thereafter, that could show evidence or causes leading the Veteran to develop actual lumbar spondylosis that was radiologically diagnosed in 2015, years after his service termination. There were no incidents seen in the medical records that could establish a link of an actual lumbar condition with service activities. After a review of the record, the Board finds that in the absence of a relative balance of medical evidence or probative lay evidence linking the Veteran’s lumbar spine disability to service, service connection is not warranted. The Board has weighed all the evidence of record, including the opinion offered by the private doctor, Dr. MQ, and finds that the most probative medical evidence does not provide a nexus to service. The Board finds that the opinion from Dr. MQ is less persuasive than the opinion provided by the VA examiners, to include the July 2020 opinion. Dr. MQ’s opinion did not include a rationale for the opinion, and there was no reasoning applied to the stated conclusion. Further, there was no indication that the private doctor had reviewed the Veteran’s medical records or performed an examination of the Veteran. Conversely, the January 2019 and July 2020 VA examiners did not find that the Veteran’s current lumbar spine condition was related to service, to include environmental hazards. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The opinions constitute the most probative evidence in this matter, as they were based in large part upon a comprehensive review of the claims file and examination of the Veteran, and the July 2020 opinion provided an adequate rationale that considered the Veteran’s in-service and post-service treatment records and the Veteran’s self-reported history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). While the Veteran contends that his lumbar spine disability is related to his military service, there is no indication that he has specialized training in diagnosing joint disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 77 (Fed. Cir. 2007). In this regard, the diagnosis of a lumbar spine disability requires medical testing and training to identify. Thus, the Veteran’s lay opinion as to the diagnosis or etiology of his claimed disability is not competent medical evidence and is assigned less probative weight. The preponderance of the evidence is against the claim of service connection, there is no doubt to be resolved, and service connection for a lumbar spine disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran has been assigned a zero percent (noncompensable) rating under 38 C.F.R. § 4.85, Diagnostic Code 6100 for his bilateral hearing loss. He contends that he is entitled to a higher disability rating. The assigned evaluations for hearing loss are determined by mechanically, so nondiscretionarily, applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC testing) testing in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. “Puretone threshold average” is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Each ear is considered separately. The Veteran was afforded a VA audiological examination in May 2015. On that occasion, pure tone thresholds, in decibels, were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 15 25 40 40 30 96 LEFT 25 20 40 40 31 96 Applying the results from the May 2015 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the right ear and Level I hearing loss in the left ear. When one ear has Level I hearing loss and the other ear has Level I hearing loss, a zero percent (noncompensable) rating is assigned under Table VII. 38 C.F.R. § 4.85. The Veteran was afforded a VA audiological examination in October 2019. On that occasion, pure tone thresholds, in decibels, were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 35 40 45 65 46.25 88 LEFT 35 35 45 55 42.5 84 Applying the results from the October 2019 VA examination to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the right ear and Level II hearing loss in the left ear. When one ear has Level II hearing loss and the other ear has Level II hearing loss, a zero percent (noncompensable) rating is assigned under Table VII. 38 C.F.R. § 4.85. In the absence of any additional medical/audiological evidence showing a more severe hearing disability, and based on the results of the VA audiological evaluations discussed above, the Veteran’s hearing loss has not approximated the criteria for a compensable evaluation at any time during this appeal. The Board has considered the Veteran’s complaints regarding the functional impact of his hearing loss on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran has stated that he has problems understanding conversations. See October 2019 VA examination report. However, the evaluation of hearing loss is predicated upon the results of the audiology studies of record, and the Board does not find the Veteran’s reports of functional effects to be inconsistent with the degree of hearing loss disability that has been shown on testing and that the assigned disability rating contemplates. See Lendenmann, supra. As such, a higher initial rating is denied. The VA examinations were conducted in accordance with 38 C.F.R. § 4.85(a) and is highly probative. Although the Veteran noted his difficulties with his hearing, he has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such is raised by the record. The Veteran has not contended, and the evidence does not otherwise suggest, that his service-connected hearing loss precludes substantially gainful employment. Accordingly, a TDIU claim has not been raised, and no action pursuant to Rice is necessary. REASONS FOR REMAND Service connection for a cervical spine disability and peripheral neuropathy of the bilateral upper and bilateral lower extremities Regarding the Veteran’s cervical spine disability claim, the Board notes that the Veteran was afforded a VA examination in July 2015, and a diagnosis of cervical degenerative joint disease was provided. The VA examiner opined that the Veteran’s cervical spine condition was less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia and was at least as likely as not due to his natural process of aging. The Board finds that a remand is warranted in this case. While the July 2015 VA examiner conducted an evaluation of the Veteran’s physical condition at the time, the VA examiner stated, only, that the Veteran’s condition was not related to his service in Southwest Asia. The VA examiner did not include the Veteran’s previous period of service, specifically from December 1965 to December 1967. Accordingly, remand is required to obtain a VA medical addendum opinion. Regarding the Veteran’s peripheral neuropathy of the bilateral upper and lower extremities claims, the Board notes that the Veteran was afforded a VA examination in July 2015. A diagnosis of idiopathic peripheral neuropathy bilateral upper and lower extremities was provided. The VA examiner stated that the Veteran’s condition was commonly described in medical literature in patients entering the third age group (elderly). There was no other evidence of any metabolic condition which could explain the diagnosis in the available medical records. The VA examiner stated that the Veteran’s claimed condition was at least as likely as not related to his natural aging process. While the July 2015 VA examiner conducted an evaluation of the Veteran’s physical condition at the time, the VA examiner did not specifically opine as to whether the Veteran’s peripheral neuropathy disabilities of his bilateral upper and lower extremities were at least as likely as not related to any in-service disease, event, or injury. As such, an addendum opinion is needed. The matters are REMANDED for the following action: 1. Return the Veteran’s claim folder to the examiner who conducted the July 2015 VA neck examination for an addendum opinion. If an additional examination is deemed necessary, one should be scheduled. If the prior examiner is not available, the claims file must be forwarded to another examiner to obtain the requested opinion. Based on the review of the record, the examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the diagnosed neck disability had its onset during, or is otherwise related to, the Veteran’s active duty service, to include both periods of active duty service, the claimed exposure to environmental hazards, and conceded Agent Orange exposure. A complete rationale must be provided for all opinions expressed and conclusions reached. 2. Return the Veteran’s claim folder to the examiner who conducted the July 2015 VA peripheral nerves conditions examination for an addendum opinion. If an additional examination is deemed necessary, one should be scheduled. If the prior examiner is not available, the claims file must be forwarded to another examiner to obtain the requested opinion. Based on the review of the record, the examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the diagnosed peripheral nerves disability of the bilateral upper AND lower extremities had its onset during, or is otherwise related to, the Veteran’s active duty service, to include both periods of active duty service, the claimed exposure to environmental hazards and conceded Agent Orange exposure. A complete rationale must be provided for all opinions expressed and conclusions reached. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.