Citation Nr: 21025244 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-23 315 DATE: April 27, 2021 ORDER Entitlement to service connection for Alzheimer’s disease is denied. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for bilateral upper diabetic neuropathy is remanded. Entitlement to service connection for bilateral lower diabetic neuropathy is remanded. Entitlement to service connection for psoriasis is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a kidney condition, to include kidney stones, is remanded. Entitlement to service connection for Bell’s Palsy is remanded. Entitlement to service connection for prostate cancer is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran’s Alzheimer's disease is not related to service. 2. The record evidence shows that the Veteran likely was exposed to significant in-service acoustic trauma 3. The record evidence does not show that any current bilateral hearing is related to active service or any incident of service, including as due to the Veteran’s conceded significant in-service acoustic trauma. CONCLUSIONS OF LAW 1. The criteria for service connection for Alzheimer’s disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1953 to March 1955, to include service in Korea. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter previously was before the Board in September 2018 when it was remanded for further development. Unfortunately, another remand is warranted in this case with regards to the claims for bilateral upper diabetic neuropathy, hypertension, diabetes mellitus, psoriasis, kidney condition and coronary artery disease. Although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). With respect to the Veteran’s service connection claim for bilateral lower diabetic neuropathy, there appears to be some confusion at the RO as to the nature of this disability. It is clear that the Veteran seeks service connection for diabetic neuropathy in each of his extremities. In statements on a November 2018 VA Form 21-4138, the Veteran also filed a new service connection claim for radiculopathy of the bilateral lower extremities, including as due to a service-connected lumbosacral spine disability. The RO requested an examination in February 2019 and asked for a medical nexus opinion concerning the contended etiological relationship between radiculopathy of the bilateral lower extremities and active service, including as due to a service-connected lumbosacral spine disability. The RO denied claims of service connection for radiculopathy of the left lower extremity and for radiculopathy of the right lower extremity in a March 2019 rating decision. The Veteran initiated an appeal of this rating decision by filing a VA Form 20-0995 later in March 2019; thus, these claims are not before the Board in this Legacy appeal. Unfortunately, the RO used the negative medical nexus opinion provided by the February 2019 VA examiner as support for continuing the denial of service connection for bilateral upper diabetic neuropathy and for bilateral lower diabetic neuropathy in the April 2020 supplemental statement of the case. This was error. The Board observes in this regard that radiculopathy and neuropathy are not interchangeable medical terms despite the common overlapping symptoms. The Board next observes that the February 2019 VA examiner was not asked to address and did not address any contended etiological relationship between the Veteran’s bilateral lower diabetic neuropathy and active service. That examination focused instead appropriately on the contended etiological relationship between radiculopathy of the bilateral lower extremities and active service. Again, claims of service connection for radiculopathy of the bilateral lower extremities are not before the Board in this Legacy appeal. The Board apologizes to the Veteran for any confusion created by the RO’s error in mixing up radiculopathy and neuropathy. The service connection claim for bilateral lower diabetic neuropathy is addressed further in the REMAND below. 1. Entitlement to service connection for Alzheimer’s disease The Veteran asserts that service connection is warranted for Alzheimer’s disease. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of Alzheimer’s disease, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Instead, the available evidence indicates that this condition did not develop until many years after active service separation. The Veteran's available service treatment records (STRs) are silent regarding any complaints, treatment, or diagnoses of Alzheimer's disease (or symptoms commonly associated with Alzheimer's disease) during service. His March 1955 separation report of medical examination reflected a normal examination. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). A July 2018 VA examiner opined that the Veteran has been diagnosed with “memory loss” due to an unspecified neurocognitive disorder which is possibly Alzheimer’s disease. Current regulations provide that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Accordingly, even if the July 2018 VA examiner’s opinion is viewed in the light most favorable to the Veteran, this evidence does not establish service connection for Alzheimer’s disease. The examiner also noted that this condition is age related and does not have a medical nexus to service. Thus, there is no evidence of an in-service injury or disease related to his Alzheimer’s disease. VA medical records do not provide any link between the Veteran's current condition to service. The July 2018 VA examiner's opinion is the only opinion of record on the issue. This examiner specifically found that the Veteran's Alzheimer’s disease was not caused by service. And the Veteran has not offered any argument as to how his Alzheimer’s disease is related to service. In summary, the Board finds that service connection for Alzheimer’s disease is not warranted. 2. Entitlement to service connection for bilateral hearing loss The Veteran contends that he suffers from bilateral hearing loss that is the result of noise exposure during military service. A review of the Veteran’s DD-214 shows that his military occupational specialty (MOS) was infantryman. Therefore, his in-service exposure to significant acoustic trauma is conceded. The November 2016 VA examination also confirms that he has bilateral hearing loss for VA purposes. Thus, the question remaining for the Board is whether his bilateral hearing loss is related to service. The November 2016 VA examiner noted that there were no complaints of hearing loss in service. At the March 1955 separation examination, the whispered voice test indicated normal hearing at 15 feet. The examiner noted that while that does not exclude the presence of a hearing deficit affecting communication, there was no complaint of hearing loss at the separation examination. Significantly, the Veteran himself complained of decreased hearing only for the past five or six years. He also indicated post service occupational noise exposure in a pharmaceutical setting. The first indication of audio treatment was in November 2012, when hearing loss was first identified, over 57 years after separation from active service. The examiner stated that it is well known that prolonged exposure to high intensity noise such as in the military may cause damage to auditory structures resulting in hearing loss; however, hearing deficits appear either immediately after noise trauma or gradually during the noise exposure period. There is no retroactive effect expected to be seen as hearing loss with an onset so many years after being exposed to military noise. The examiner determined that, based on the medical evidence, it was less likely than not that the bilateral hearing loss was related to exposure to hazardous noise during military service. The Board attaches significant probative value to the November 2016 VA opinion as it is reasoned, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. See Prejean v. West, 13 Vet. App. at 448-9. The Board also considered whether the Veteran is entitled to service connection for bilateral hearing loss on a presumptive basis. There is no medical evidence that suggests the Veteran had bilateral hearing loss during active service within the first post-service year (i.e., by March 1956). In fact, he stated his hearing loss began five or six years prior to his VA examination in November 2016. This persuasively suggests to the Board that he did not experienced bilateral hearing loss for several decades after his service separation. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, the Board finds that service connection for bilateral hearing loss on a presumptive basis also is not warranted. The Board has considered the Veteran’s lay assertions as to the etiology of his condition. Although he is competent to attest to his in-service and post-service experiences, he is not competent to opine as to the medical etiology of his bilateral hearing loss because he lacks medical expertise or training. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for bilateral hearing loss. In summary, the Board finds that service connection for bilateral hearing loss is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral upper diabetic neuropathy, bilateral lower diabetic neuropathy, hypertension, diabetes mellitus, psoriasis, kidney condition, and for coronary artery disease are remanded The Veteran is seeking service connection for bilateral upper diabetic neuropathy, bilateral lower diabetic neuropathy, hypertension, diabetes mellitus, psoriasis, kidney condition, and for coronary artery disease. As noted above, the Board finds that additional development is necessary before these claims can be adjudicated on the merits. The record evidence shows that the Veteran has current diagnoses of bilateral upper diabetic neuropathy, bilateral lower diabetic neuropathy, hypertension, diabetes mellitus, psoriasis, a kidney condition (kidney stones), and coronary artery disease, his service treatment records (STRs) are silent for any complaints, diagnosis, or treatment of these conditions. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. The Board cannot make a fully-informed decision on these issues because no VA examiner has opined as to whether they are related to service. The Board observes here that VA's duty to assist includes scheduling an examination where necessary and the threshold for scheduling an examination is low. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that, on remand, the Veteran should be scheduled for examinations which address these matters. 2. Entitlement to service connection for Bell’s Palsy The Veteran’s pre-induction service examination did not show any facial paralysis. Treatment records from a hospital stay in June 1955 show that he reported having facial paralysis prior to active service at age 2. Upon physical examination in June 1955, he showed an “old peripheral facial paralysis complete, showing Bell’s phenomenon.” The Board cannot make a fully informed decision on the issue because no VA examiner has opined whether Bell’s Palsy clearly and unmistakably existed prior to active service and, if so, whether it was clearly and unmistakably not aggravated by service. Thus, the Board finds that, on remand, the RO should obtain an addendum opinion which addresses this matter. 3. Entitlement to service connection for prostate cancer is remanded. The Veteran identified relevant outstanding private treatment records regarding his prostate condition beginning in 1993 from Metropolitan Hospital. There is no indication that the RO requested the identified private treatment records. Thus, remand is required to attempt to obtain these records. VA treatment records show the Veteran had prostatic carcinoma preceding radical prostatectomy in March 2005. The Board finds that the Veteran should be afforded a VA examination for prostate cancer to determine the nature and etiology of the condition in order to make a fully informed decision. See McLendon, 20 Vet. App. at 79. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran’s updated treatment records, to include specifically any records associated with his prostate cancer treatment at Metropolitan Hospital dated in 1993. 2. Thereafter, schedule the Veteran for examination to determine the nature and etiology of his bilateral upper diabetic neuropathy and bilateral lower diabetic neuropathy. The claims file and a copy of this REMAND should be provided to the clinician for review. The decision of whether the Veteran should report for examination is left to the discretion of the clinician. Based on a review of the claims file and the results of the Veteran’s physical examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that bilateral upper diabetic neuropathy or bilateral lower diabetic neuropathy, if diagnosed, is related to active service. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for the Veteran’s bilateral upper extremities and his bilateral lower extremities, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for bilateral upper diabetic neuropathy or for bilateral lower diabetic neuropathy, alone, is insufficient rationale for a medical nexus opinion. 3. Schedule the Veteran for examination to determine the nature and etiology of his hypertension. The claims file and a copy of this REMAND should be provided to the clinician for review. The decision of whether the Veteran should report for examination is left to the discretion of the clinician. Based on a review of the claims file and the results of the Veteran’s physical examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hypertension, if diagnosed, is related to active service. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for hypertension, alone, is insufficient rationale for a medical nexus opinion. 4. Schedule the Veteran for examination to determine the nature and etiology of his diabetes mellitus. The claims file and a copy of this REMAND should be provided to the clinician for review. The decision of whether the Veteran should report for examination is left to the discretion of the clinician. Based on a review of the claims file and the results of the Veteran’s physical examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that diabetes mellitus, if diagnosed, is related to active service. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for diabetes mellitus, alone, is insufficient rationale for a medical nexus opinion. 5. Schedule the Veteran for examination to determine the nature and etiology of his psoriasis. The claims file and a copy of this REMAND should be provided to the clinician for review. The decision of whether the Veteran should report for examination is left to the discretion of the clinician. Based on a review of the claims file and the results of the Veteran’s physical examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that psoriasis, if diagnosed, is related to active service. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for psoriasis, alone, is insufficient rationale for a medical nexus opinion. 6. Schedule the Veteran for examination to determine the nature and etiology of his kidney condition. The claims file and a copy of this REMAND should be provided to the clinician for review. The decision of whether the Veteran should report for examination is left to the discretion of the clinician. Based on a review of the claims file and the results of the Veteran’s physical examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a kidney condition, to include kidney stones, if diagnosed, is related to active service. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each kidney condition experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for a kidney condition, to include kidney stones, alone, is insufficient rationale for a medical nexus opinion. 7. Schedule the Veteran for examination to determine the nature and etiology of his coronary artery disease. The claims file and a copy of this REMAND should be provided to the clinician for review. The decision of whether the Veteran should report for examination is left to the discretion of the clinician. Based on a review of the claims file and the results of the Veteran’s physical examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that coronary artery disease, if diagnosed, is related to active service. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician should explain why this is so. The clinician is advised that the lack of contemporaneous records documenting complaints of or treatment for coronary artery disease, alone, is insufficient rationale for a medical nexus opinion. 8. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran’s Bell’s Palsy. The decision on whether the Veteran should report for examination is left to the discretion of the clinician asked to provide the medical nexus opinion. Based on a review of the claims file and the results of the Veteran’s physical examination (if held), the clinician is asked to state whether the Veteran's Bell’s Palsy diagnosed in treatment records clearly and unmistakably existed prior to active service. If so, then the clinician is asked to state whether the Bell’s Palsy clearly and unmistakably was not aggravated (permanently worsened) by service. If Bell’s Palsy did not clearly and unmistakably exist prior to active service, then the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that Bell’s Palsy is related to active service. A rationale must be provided for any opinion(s) expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. 9. Readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jaigirdar, 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.