Citation Nr: 21026704 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-38 104 DATE: May 3, 2021 ORDER Entitlement to service connection for neurological impairment of the left lower extremity, diagnosed as radiculopathy of the sciatic nerve, is granted. Entitlement to service connection for neurological impairment of the right lower extremity, diagnosed as radiculopathy of the sciatic nerve, is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a skin condition affecting the face is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran has radiculopathy of the left sciatic nerve due to his service-connected lumbar spine disability. 2. The Veteran has radiculopathy of the right sciatic nerve due to his service-connected lumbar spine disability. 3. The Veteran does not have a current hearing loss disability within the meaning of VA regulations. CONCLUSIONS OF LAW 1. The criteria for service connection for neurological impairment of the left lower extremity, diagnosed as radiculopathy of the sciatic nerve, have been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.71a. 2. The criteria for service connection for neurological impairment of the right lower extremity, diagnosed as radiculopathy of the sciatic nerve, have been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.71a. 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran appeared at a hearing before the undersigned in November 2019. A transcript of the hearing is of record. In February 2020, the Board reopened the issue of service connection for bilateral hearing loss and remanded it with the other issues on appeal for further development, which will be discussed in more detail as relevant below. 1. Service connection for neurological impairment of the left lower extremity 2. Service connection for neurological impairment of the right lower extremity Service connection may be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. Further, the General Rating Formula for Disease and Injuries of the Spine contemplates separate ratings being assigned for associated neurological impairment of the lower extremities. See 38 C.F.R. § 4.71a. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Here, the Veteran is entitled to service connection for a lumbar spine disability. His November 2020 thoracolumbar spine examination shows he has radiculopathy of the bilateral sciatic nerves due to his lumbar spine disability. The November 2020 thoracolumbar spine examination is also somewhat consistent with the Veteran's November 2020 peripheral nerves examination, which also notes neurological impairment of the bilateral sciatic nerves but includes a diagnosis of "other idiopathic peripheral autonomic neuropathy" suggesting an unknown cause for the neurological impairment of the Veteran's lower extremities. Nevertheless, the Board resolves reasonable doubt in the Veteran's favor in this regard and finds the neurological impairment of his bilateral sciatic nerves is due to his service-connected lumbar spine disability, as reported in the November 2020 thoracolumbar spine examination, due to the approximate balance of evidence regarding this material issue. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Although the Veteran explicitly claimed service connection for peripheral neuropathy of the lower extremities, the Board notes the Veteran is not required nor expected to provide a diagnosis for a claimed disability with the diagnosed radiculopathy clearly encompassing his reported symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, neurological impairment of the sciatic nerve is rated under the same diagnostic code whether referenced as radiculopathy or as neuropathy, so the specific diagnosis will carry no relevance with respect to the Veteran's compensation award. See 38 C.F.R. § 4.124a. Thus, the Board finds the Veteran-centric approach in this case requires an award of service connection for neurological impairment of the bilateral lower extremities, diagnosed as radiculopathy of the sciatic nerve, and, to that extent, the Veteran's appeal is granted. 3. Service connection for bilateral hearing loss For the purposes of applying the laws administered by VA, hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz is 40 decibels or greater; the auditory 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. The Veteran was first provided a VA audiological examination in July 2010, following his initial June 2010 service connection claim for bilateral hearing loss. The July 2010 examination revealed the following auditory thresholds: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 20 20 30 30 Left Ear 15 20 20 25 30 Speech recognition scores were 98 percent in the right ear and 96 percent in the left ear at the time of the July 2010 examination. An April 2011 rating decision denied the Veteran's initial service connection claim for bilateral hearing loss based on the July 2010 examination report, finding the evidence failed to establish a current disability. As noted in the Board's February 2020 decision, VA did not receive a notice of disagreement or new and material evidence within the appeal period of the April 2011 rating decision; therefore, it is final. Yet, as previously noted, the Board reopened the issue of service connection for bilateral hearing loss in February 2020 with the relevant period for the current appeal dating back to the Veteran's September 2015 request to reopen his previously denied claim. VA provided the initial audiological examination in the context of the current appeal in November 2015. The November 2015 examination revealed the following auditory thresholds: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 25 20 20 30 30 Left Ear 15 20 0 25 30 Speech recognition scores were 100 percent bilaterally during the November 2015 examination. The Board acknowledges the November 2015 examiner provided a positive nexus opinion regarding the Veteran's claim, but the Board was unable to grant service connection in its February 2020 decision because there was no audiological testing confirming the presence of a bilateral hearing loss disability in the appeal period, which commenced with the Veteran's September 2015 request to reopen his previously denied claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). As a result, the Board remanded the Veteran's service connection claim for bilateral hearing loss in February 2020 for a third audiological examination due to his November 2019 testimony regarding increased hearing difficulties since his last examination in efforts to provide him every opportunity to establish his claim. The post-remand, November 2020 examination revealed the following auditory thresholds: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 5 10 10 25 20 Left Ear 20 15 15 20 15 Speech recognition scores were again 100 percent bilaterally during the November 2020 examination. The Board finds the preponderance of evidence is against a finding that the Veteran has had a bilateral hearing loss disability at any point in the appeal period. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (1997). While the Veteran is competent to report symptoms of hearing loss, he does not possess the skill or expertise to diagnose hearing loss within the meaning of 38 C.F.R. § 3.385, which requires audiometric testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Two VA examinations in the appeal period have confirmed the Veteran does not have a hearing loss disability as defined in 38 C.F.R. § 3.385. The results of the two examinations in the appeal period are consistent with the Veteran's previous VA examination in July 2010. The Board recognizes the Veteran does have some degree of hearing loss, as this clearly noted in treatment records and examinations reports, but the level of the Veteran's current hearing loss is not sufficient to establish a hearing disability as defined in 38 C.F.R. § 3.385. In reaching this finding, the Board acknowledges the Veteran's September 1968 separation examination report suggests his left ear auditory thresholds met the requirements of 38 C.F.R. § 3.385 at that time with a November 2009 VA treatment note also suggesting the presence of a bilateral hearing loss disability at that time. Yet, both of these records predate the current appeal period based on the Veteran's September 2015 request to reopen his previously denied service connection claim for bilateral hearing loss. There are no audiometric test results in the current appeal period establishing a bilateral hearing loss disability with the probative value of the November 2015 and February 2020 examinations reports outweighing the probative value of testing conducted outside of the appeal period with regard to the current disability requirement of the Veteran's claim. The Board has no discretion to award service connection for a hearing loss disability when the requirements of 38 C.F.R. § 3.385 have not been met, as the determination of whether hearing loss constitutes a disability for VA purposes is arrived at by a mechanical application of the definition found in 38 C.F.R. § 3.385 to audiometric (pure tone threshold and Maryland CNC) testing results. As the preponderance of the evidence shows the Veteran does not have a current bilateral hearing loss disability, the benefit-of-the-doubt doctrine does not apply, and his service connection claim for bilateral hearing loss must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a skin condition affecting the face is remanded. In February 2020, the Board remanded the issue of service connection for a skin condition affecting the face so the Agency of Original Jurisdiction (AOJ) could obtain an opinion regarding the claim to ensure compliance with VA's duty to assist. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board's February 2020 remand directives included very specific questions for selected examiner to answer due to the potential application of the presumption of aggravation. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306; see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Specifically, the Board asked the selected examiner to first address whether "[i]t is it at least as likely as not (50 percent probability or greater) that there was an increase in severity of the Veteran's pre-existing facial acne in service" and, if so, whether the increase was "clearly and unmistakably due to the natural progression of the disability." The November 2020 VA examiner who provided the post-remand opinion regarding the Veteran's claim did not address the questions as posed by the Board but rather opined "[i]t is less likely than not (less than 50% probability) that his acne which existed prior to service had an increase in its natural progression" an answer which essentially combines the two separate prongs of the presumption of aggravation analysis into a single statement that is not phrased under the proper legal burden of proof. Thus, a remand is required to ensure compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for hypertension is remanded. Following the Board's February 2020 remand, the AOJ determined evidence submitted by the Veteran triggered VA's duty to obtain a nexus opinion regarding his service connection claim for hypertension. See McLendon, supra. The AOJ's opinion request included both direct service connection and secondary service connection. Although the Board finds the secondary service connection adequate, the Board finds an addendum to the direct service connection opinion is necessary. The Board notes herbicide agent exposure has been conceded in the Veteran's case. A recent decision of the United States Court of Appeals for the Federal Circuit, Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021), overruled a previous binding precent on the Board and held VA must consider relevant National Academies of Sciences, Engineering and Medicine (NAS) reports constructively in its possession when relevant and reasonably connected to claim with no requirement that the evidence be specific to the claimant or have a direct relationship to the claim. Further, in Healey v. McDonough, No. 18-6970 (U.S. Vet. App. Feb. 24, 2021), the United States Court of Appeals for Veterans Claims held the Board's acknowledgement of relevant NAS reports regarding hypertension in the now rescinded Purplebook require VA to obtain a direct service connection nexus opinion addressing herbicide agent exposure in the context of service connection claim for hypertension when herbicide agent exposure has been conceded. In light of the holdings in Euzebio and Healey, the Board takes judicial notice of the "Veterans and Agent Orange: Update 11" (2018) in which NAS first reported its conclusion that there is now sufficient evidence to establish an association between hypertension and herbicide agent exposure, an upgrade from its previous classification of limited or suggestive evidence of an association. Thus, the Board finds this evidence must be addressed in the context of a direct service connection opinion regarding the Veteran's service connection claim for hypertension. The matters are REMANDED for the following action: 1. Obtain a new opinion regarding the Veteran's service connection claim for a skin condition affecting the face, preferably with an examiner other than the November 2020 examiner. The selected examiner must explicitly address the following questions: (a.) Is it at least as likely as not (50 percent probability or greater) that there was an increase in severity of the Veteran's pre-existing facial acne in service? (b.) If there was an increase in severity of the pre-existing facial acne, was that increase clearly and unmistakably due to the natural progression of the disability? If the examiner fails to explicitly answer the questions as posed above, the examination report must be rejected and/or returned to the examiner as incomplete. It is imperative that the questions above be answered using the appropriate legal standard to facilitate an analysis of the presumption of aggravation. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided 2. Obtain an addendum to the November 2020 opinion regarding the Veteran's service connection claim for hypertension that addresses the likelihood of a relationship between the claimed hypertension and the Veteran's conceded herbicide agent exposure. Specifically, the examiner is asked to address whether the Veteran's hypertension is at least as likely as not (50 percent probability or greater) the result of his conceded exposure to herbicide agents in active service. In this context, the examiner must address the NAS finding of "sufficient" evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War as reported in the Veterans and Agent Orange: Update 11 (2018). The addendum must include a complete rationale to support the conclusion reached therein. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.