Citation Nr: 21016065 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-35 247 DATE: March 19, 2021 REMANDED Service connection for hearing loss is remanded. Service connection for peripheral neuropathy of the lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from September 1965 to September 1968. The Veteran testified before the undersigned Veterans Law Judge during a January 2021 hearing and a transcript is of record. These matters are on appeal from a June 2015 rating decision. 1. Service connection for hearing loss is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in June 2015. The clinician opined that the Veteran’s bilateral hearing loss was not caused by or a result of noise exposure in the military because his hearing was normal at the time of separation from active duty. This is not the correct standard. The absence of evidence of a hearing loss disability in service is not fatal to a veteran’s claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection. See Hensley v. Brown, 5 Vet. App. 155 (1993). The Board therefore finds that the VA opinion is inadequate and does not provide a sufficient basis upon which to adjudicate the claim. A remand for an additional VA medical opinion is therefore necessary. Because the Veteran’s entrance examination was prior to January 1, 1967, the clinician should assume that the hearing thresholds were recorded using American Standards Association (ASA) units. Because the Veteran’s separation examination was between January 1, 1967 and December 31, 1970 and it is unclear which standards were used in that examination, the clinician should consider the hearing thresholds under both ASA and International Standards Organization-American National Standards Institute (ISO-ANSI) units, relying on the measurements most favorable to the Veteran’s appeal. 2. Service connection for peripheral neuropathy of the lower extremities is remanded. The Veteran was afforded a VA examination in June 2015. The clinician diagnosed axonal neuropathy of the feet but did not provide an opinion as to its etiology. Because the Veteran served in the Republic of Vietnam from March 1967 to March 1968, which was during the Vietnam Era, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307 (2020). Early onset peripheral neuropathy is among the disorders for which service connection is presumed given presumptive exposure to herbicides. 38 C.F.R. § 3.309(e) (2020). Peripheral neuropathy is “early onset” under the applicable regulations if it became manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii)(2020). The Veteran has reported that his symptoms had their onset during his active duty service. In addition, despite the presumptive regulations, a Veteran may establish service connection based on exposure to herbicides with proof of actual, direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a veteran does not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis. For these reasons, a remand is necessary to afford the Veteran a medical opinion as to the etiology of his peripheral neuropathy. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran’s hearing loss. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hearing loss began during active service, is related to an incident of service, or began within one year after discharge from active service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s statement in his June 2014 claim that his hearing loss had its onset in 1967. b. The Veteran’s statements in his July 2015 Notice of Disagreement (NOD) regarding his in-service noise exposure. c. The Veteran’s statements in his June 2017 substantive appeal (VA Form 9) regarding his in-service noise exposure. d. The Veteran’s testimony during a January 2021 hearing regarding the onset and continuity of his hearing loss symptoms, as well as his representative’s contentions during that hearing regarding the variability between the Veteran’s entrance and separation examinations. e. The Veteran’s January 2021 statements regarding his in-service noise exposure. The clinician is advised that, because the Veteran engaged in combat during his active duty service and attributes his disability in part to noise exposure during that combat, his lay statements are sufficient to establish the incurrence or aggravation of his hearing loss if they are credible and consistent with the circumstances, conditions, or hardships of his service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. See 38 U.S.C. § 1154(b) (2012). Because the Veteran’s entrance examination was prior to January 1, 1967, the clinician should assume that the hearing thresholds were recorded using American Standards Association (ASA) units. Because the Veteran’s separation examination was between January 1, 1967 and December 31, 1970 and it is unclear which standards were used in that examination, the clinician should consider the hearing thresholds under both ASA and International Standards Organization-American National Standards Institute (ISO-ANSI) units, relying on the measurements most favorable to the Veteran’s appeal. The rationale for any opinion expressed should be provided. Note that an absence of hearing loss in service cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s peripheral neuropathy of the lower extremities. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to whether it is as likely as not (a probability of 50 percent or greater) that any current peripheral neuropathy of the lower extremities had its origin in service or is related to the Veteran’s active service, including exposure to herbicides, or whether it began within one year after his departure from Vietnam in March 1968. If the Veteran does not have early-onset peripheral neuropathy, the clinician is advised that service connection can be established due to herbicide exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because the Veteran’s peripheral neuropathy is not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A February 1999 private treatment record noting the Veteran’s report of symptoms in his lower extremities and containing an electromyography report. b. The Veteran’s statement in his July 2015 Notice of Disagreement (NOD) that he has no family history of neuropathy and that “there are no other known causes” other than herbicide exposure to explain his symptoms. c. The Veteran’s testimony during a January 2021 hearing regarding the onset and continuity of his symptoms, including his attempt to seek treatment soon after his separation from active duty service. The clinician is advised that, because the Veteran engaged in combat during his active duty service and attributes his disability to herbicide exposure during that combat, his lay statements are sufficient to establish the incurrence or aggravation of his neuropathy if they are credible and consistent with the circumstances, conditions, or hardships of his service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. See 38 U.S.C. § 1154(b) (2012). The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998) 4. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.