Citation Nr: 21021273 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-37 729 DATE: April 12, 2021 ORDER Entitlement to an initial compensable disability rating for hearing loss is denied. Entitlement to service connection for peripheral neuropathy of the right foot is denied. FINDINGS OF FACT 1. Audiograms of record demonstrate that the Veteran’s hearing loss has been manifested by, at worst, Level I hearing acuity in both ears. 2. The Veteran’s current peripheral neuropathy of the right foot did not manifest in active service or within one year of his separation from active service, and is not otherwise related to his period of active service, to include as due to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2020). 2. The criteria for service connection for peripheral neuropathy of the right foot have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from December 1966 to July 1969. In January 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board of Veterans’ Appeals (Board) hearing held at the Boston, Massachusetts Regional Office (RO). A transcript of the hearing is of record. In February 2020, the Board remanded the issues on appeal for further evidentiary development. 1. Entitlement to an initial compensable rating for hearing loss The Veteran contends that his hearing loss is more severe than what is reflected by his current, noncompensable rating. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability for bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I (for essentially normal hearing acuity) through Level XI (for profound deafness). 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The evaluations derived from the schedule are intended to make allowance for improvement by hearing aids. 38 C.F.R. § 4.85, DC 6100. Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86. That regulation states that: (a) When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. (b) When the puretone 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. Each ear will be evaluated separately. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). The instant appeal dates from the Veteran’s claim for service connection, which VA received in June 2012. In September 2014, he was examined by a private audiologist; the report revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 20 35 LEFT 20 20 20 20 25 Speech audiometry revealed speech recognition ability of 98 percent in both ears. It was noted that the Veteran’s hearing may have worsened since his last audiogram, in May 2012, particularly on the right at 8000 Hertz and on the left from 6000-8000 Hertz. In September 2015, the Veteran was afforded a VA audiological evaluation, which revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 20 35 LEFT 20 20 15 25 30 The average decibel loss was 20 decibels in the right ear and 22.5 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. At his January 2019 Board hearing, the Veteran testified that his hearing had gotten slightly worse since his last evaluation. He reported being overwhelmed by background noise and being unable to hear people speaking from the next room. Consequently, the Board directed the RO to provide him with another evaluation. This was done in August 2020. The report from the August 2020 VA audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 35 55 LEFT 15 15 20 25 30 The average decibel loss was 32.5 decibels in the right ear and 22.5 decibels in the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. In October 2020, the Veteran submitted an article titled, “Measuring the Impact of Hearing Loss on Quality of Life.” The article noted that hearing loss was a barrier to communication that could “lead to strained marriages, diminished or lost friendships and limited interactions with coworkers and supervisors,” as well as “loss of enjoyment” for everyday activities. The article indicated that hearing loss was “strongly associated” with depression and other mental health problems. Having reviewed the pertinent evidence, the Board finds that the audiological examinations of record indicate findings corresponding to no higher than a noncompensable rating, under the applicable criteria. More specifically, applying Table VI of the rating schedule, the results of the audiograms performed in September 2014, September 2015, and August 2020 reflect that the Veteran had, at worst, Level I hearing acuity in both ears. See 38 C.F.R. § 4.85, Table VI. Pursuant to Table VII, these results correspond to a noncompensable rating. See 38 C.F.R. § 4.85, Table VII. There is no competent evidence in the record that suggests the Veteran’s hearing loss has ever been severe enough to warrant a higher rating. The Board has no reason to doubt the validity of the VA audiometric testing in this case. Moreover, none of the VA examinations demonstrate an exceptional pattern of hearing impairment, as the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000, and 4000 Hertz, or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b). Additionally, there is no examiner certification that the use of speech discrimination testing was not appropriate due to factors such as language difficulties, inconsistent scores, etc. As such, there is no basis to alternatively rate this claim under Table VIA. See 38 C.F.R. § 4.85(c). The Veteran’s subjective reports of hearing impairment, to include his reports of difficulty distinguishing between background noise and speech, have been considered. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board also acknowledges the article submitted by the Veteran, and discussed above, which suggests a link between mental health problems and hearing loss. However, a review of the Veteran’s lay statements gives no indication of specific symptoms or a particular degree of impairment that would justify a compensable rating in this case. The Veteran has not reported suffering depression or other mental health problems due to his hearing loss. Furthermore, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. In this regard, as discussed above, VA audiometric examination findings in this case demonstrate no basis for any increase in disability evaluation. The Veteran has not alleged any errors were made in either of the VA studies of record that would compromise the validity of the results. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019); Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). The Veteran’s hearing loss symptoms are fully contemplated under the rating criteria provided in DC 6100. As noted above, while the Veteran has provided evidence indicating that in some cases hearing loss may cause mental health problems, there is no evidence in this particular case that he has suffered such symptoms or any other type of functional impairment, apart from the demonstrated hearing loss, as a result of his hearing loss. As such, there can be no basis for entitlement to separate or increased ratings, or to an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1). The Board notes that the proposed rule for the current version of DC 6100 explains that the criteria of DC 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment. See 52 Fed. Reg. 17607 (May 11, 1987). As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. § 4.85, 4.86(a), 4.87(a), and Tables VI and VII. In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range. Overall, the new schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa. Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores, and to recognize exceptional patterns of hearing impairment. Notably, VA determined that “Table VII was developed during months of consultations with our Department of Medicine and represents the best judgment of experts in this field.” The Board defers to VA’s expertise in determining the most appropriate measure of hearing loss impairment in terms of functioning under the ordinary conditions of life, including employment. 38 U.S.C. § 1155. As discussed above, the Veteran has not forth clear evidence that the VA examiners did not properly discharge their examination duties, nor has he demonstrated specific symptoms or functional impairment due to hearing loss that would justify consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The Veteran 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, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the record). In sum, the application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports of record demonstrate that the appropriate rating for the Veteran’s hearing loss is noncompensable, throughout the appeal period. The Veteran has not met the criteria for a compensable rating during any discrete period involved in this appeal. His claim must therefore be denied. 2. Entitlement to service connection for peripheral neuropathy of the right foot, to include as due to in-service herbicide exposure The Veteran contends that his current peripheral neuropathy of the right foot is due to his exposure to herbicide agents during the Vietnam War. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). For veterans exposed to herbicide agents, such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, absent affirmative evidence to the contrary, certain diseases, including early-onset peripheral neuropathy, which manifests to a compensable degree within one year after the last date on which the veteran was exposed to an herbicide agent, will be service connected even if there is no in-service record of the disease. 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). Notwithstanding the foregoing, a veteran is not precluded from establishing service connection due to exposure to herbicides with proof of direct causation. Combee v. Brown, 38 F.3d 1039, 1042 (Fed. Cir. 1994). As to the “current disability” element, the record shows that the Veteran has been diagnosed with peripheral mononeuropathy of the right foot during the pendency of his appeal. Likewise, VA has conceded that the Veteran was exposed to herbicide agents as a result of nautical service in the offshore eligible waters as defined in the Blue Water Navy Vietnam Veterans Act of 2019, Public Law 116-23. As such, the “current disability” and “in-service incurrence” elements have been met. As to the “nexus” element, the Board notes that the Veteran’s service treatment records include no evidence of treatment or complaints for lower extremity neuropathy or other nerve impairment. His enlistment and separation examination reports reflect that his lower extremities were normal. (These records do show that the Veteran was treated for left and right ingrown toenails in service.) In support of his claim, the Veteran has provided two opinions from his private physician which suggest a link between the Veteran’s neuropathy and his in-service herbicide exposure. Unfortunately, however, neither opinion contains a detailed rationale. Of the two, a January 2019 opinion is the most detailed; it states the physician had treated the Veteran since 2015 for peroneal mononeuropathy, that the Veteran was not diabetic, and that that “his condition is such that it is as likely as not a toxic neuropathy caused by exposure to Agent Orange.” Notably, neither opinion addressed the lengthy delay between the Veteran’s separation from service and the onset of his symptoms, nor did the physician provide further information regarding the likelihood of a link between the specific type of neuropathy at issue and the Veteran’s conceded herbicide agent exposure. In January 2019, at his Board hearing, the Veteran testified that his symptoms began “within the last five years.” He later elaborated that while it was possible he had experienced nerve impairment within a year of his separation, he could not “definitively say that it showed up early on.” There is no indication in the record that the Veteran has actually described experiencing symptoms of nerve impairment in service or within one year of separation from service. In February 2020, the Veteran was afforded a VA examination for peripheral nerve conditions. The report notes that the Veteran described first experiencing nerve symptoms in his right foot approximately five years prior. The examiner confirmed the previous diagnosis of peroneal mononeuropathy and opined that this disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include herbicide agent exposure. By way of rationale, the examiner explained that the majority of toxic neuropathies present in a length-dependent fashion, meaning “the toxin is evenly distributed throughout the body and affects all nerves equally.” As a result, the examiner continued, “it would be much more common to have a polyneuropathy that is the result of a[n] exposure event, not a mono neuropathy as is the case here.” Furthermore, the examiner explained, “[t]ypically toxic neuropathies only progress as long as there is exposure to the offending agent, and typically cease after removal of the offending agent.” Consequently, “[t]ypically toxic neuropathies will develop with the close temporal relationships to the exposure event, it would not be likely that a neuropathy to developed more than 40 years after the initial exposure would be due to an exposure event.” Notably, the examiner specifically addressed the positive opinions of record from the Veteran’s physician, noting that they lacked citations and did not address the fact that the Veteran’s was a mononeuropathy nor the delayed onset of his symptoms. After careful review, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current peripheral neuropathy of the right foot was incurred in active service or is otherwise related to active service, to include as due to his exposure to herbicide agents. Unfortunately, there is simply no competent evidence establishing that the Veteran’s neuropathy had its onset within one year of service so as to warrant presumptive service connection for a chronic disease or as early-onset peripheral neuropathy due to presumed exposure to herbicide agents. In this regard, the Board finds the VA examiner’s February 2020 opinion to be the most probative evidence of record, as it accurately characterized the Veteran’s service treatment records, relevant post-service medical records, positive private medical opinions, and the Veteran’s lay contentions regarding the onset of his symptoms. The positive private opinions of record, by contrast, are merely conclusory statements of nexus, insufficient to establish a basis for service connection. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular medical expert’s opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board notes that, even accepting the Veteran’s descriptions of his symptomatology, the evidence does not demonstrate onset of neuropathy in service or within one year of separation from service. The VA examiner’s negative nexus opinion is based on a detailed and factually accurate analysis of the Veteran’s symptoms and relevant medical literature, including a discussion of the specific type of neuropathy at issue and an explanation as to why that type is less likely than not due to toxic exposure events. The Veteran’s physician made no attempt to explain the many-decade delay between his exposure and the onset of his symptoms, nor did the physician discuss the significance of the specific type of neuropathy at issue. The Board acknowledges the Veteran’s contentions that his peripheral neuropathy is related to his exposure to herbicide agents in service. The Board does not wish to minimize the harrowing nature of the Veteran’s service, nor his sacrifice to his country. However, the Board is bound by the law, and in this case the weight of the evidence is against the Veteran’s claim that his neuropathy manifested in service or within one year of separation, or is otherwise causally linked to his exposure to herbicide agents. As a final matter, the Board recognizes that the Veteran submitted a prior Board decision regarding a different Veteran in October 2020, in which the Board granted service connection for peripheral neuropathy based on exposure to herbicide agents despite the fact that the Veteran did not meet the presumptive standard for service connection. That decision is not binding in the instant matter. 38 C.F.R. § 20.1303. Furthermore, the prior decision is distinguishable from this case. In that decision, the evidence weighing against the Veteran’s claim was determined by the Board to be of little probative value. Conversely, here there is a highly probative opinion from a VA examiner which explains, in detail and with supporting evidence, why service connection is not warranted. In sum, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s current peripheral neuropathy of the right foot is related to active service, to include as due to herbicide exposure. His claim for service connection must therefore be denied. The Board is grateful for the Veteran’s honorable service. This decision is in no way meant to detract from that service. The Board is bound by the law, however, and for the reasons discussed above, the benefits he seeks cannot be granted at this time. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.