Citation Nr: 21029428 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-06 244 DATE: May 13, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a heart condition, to include as secondary to service-connected bilateral lower extremity peripheral neuropathy, is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a disability rating of 40 percent, but no higher, for left lower extremity peripheral neuropathy is granted. Entitlement to a disability rating of 40 percent, but no higher, for right lower extremity peripheral neuropathy is granted. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is not etiologically related to service. 2. The Veteran's heart condition is not etiologically related to service. 3. Throughout the period on appeal, audiometric examination has corresponded to no greater than Level I hearing loss in the right ear and Level I hearing loss in the left ear. 4. Throughout the period on appeal, the Veteran's bilateral lower extremity peripheral neuropathy has been manifested by moderately severe incomplete paralysis. It has not been manifested by severe incomplete paralysis with marked muscular atrophy nor has complete paralysis been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a heart condition, to include as secondary to service-connected bilateral lower extremity peripheral neuropathy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385, 4.85, 4.86. 4. The criteria for entitlement to individual 40 percent ratings, but no higher, for bilateral lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to January 1968. He appeals an October 2013 rating decision denying entitlement to service connection for a heart condition, a compensable rating for bilateral hearing loss, and individual ratings greater than 20 percent for bilateral lower extremity peripheral neuropathy. He also appeals a January 2015 rating decision denying entitlement to service connection for a low back disability. The Veteran testified before the undersigned Veterans Law Judge in March 2013. A transcript of that hearing is of record. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence 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 between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 1. Entitlement to service connection for a lumbar spine disability. The Veteran contends that his current lumbar spine disability is attributable to active service. Specifically, he asserts that he originally injured his low back during basic training and later aggravated the injury post-service. After a review of the evidence, the Board finds that service connection is not warranted. The Veteran's service treatment records show treatment for low back pain on two occasions. On one occasion, "thoracic lumbar strain" is noted without substantial accompanying detail. On another occasion, an episode of low back pain was attributed to a urinary tract infection. No further low back complaints are recorded during service and the Veteran denied any low back problems at separation. He was diagnosed with spinal stenosis in December 2004. As to continuity of symptoms since service, the earliest recorded complaints of a low back condition come from September 2001 VA treatment records, many decades after separation from service. The Veteran asserts that he self-medicated prior to that and has been unable to obtain or submit any private medical records prior to September 2001. He asserts that he just dealt with the pain in service for fear of retribution from his peers and continued that mindset out into civilian life. He further states that he unaware that he may be eligible for VA care until 2001. Unfortunately, the Board is unable to grant service connection based on statements of continuous symptoms alone. Here, in addition to the fact that many decades elapsed since service, he was specifically asked whether he experienced back pain when he left active duty in November 1967, he denied any such symptoms. Moreover, despite the fact that the Veteran stated that he was unaware of the availability of benefits or medical care, the record reflects that he applied for education benefits as well as submitted a claim for dental trauma in 1984. As such, the Board may conclude that the Veteran was aware of the VA benefits system at that time. Had he been experiencing back pain since service, it is reasonable to assume that he would have submitted a claim for benefits at that time. Next, despite the lack of evidence regarding continuous symptoms, service connection may nevertheless be granted if the evidence otherwise indicates a relationship between active duty service and his current complaints. However, such a relationship has not been shown here. Specifically, the Veteran was afforded a VA examination in September 2017. The examiner determined that the Veteran's low back condition was less likely than not related to service. The examiner reasoned that the Veteran's service treatment records show complaints of back pain in 1966 with no further back pain complaints through his release from active duty in 1967. VA medical records report an onset of low back pain in 2004. Review of this Veteran's file shows no objective evidence of a pathophysiologic relationship between his back-pain complaints in service and his development of chronic low back pain some 38 years later. In addition, the examiner opined that the Veteran's low back condition was less likely than not proximately due to his service-connected bilateral lower extremity peripheral neuropathy. The examiner reasoned that the Veteran's MRI showed a congenitally narrowed spinal canal and evidence of broad-based disc protrusion causing spinal stenosis. There would be no logical connection that can be made from the cold weather-related injury resulting in lower extremity neuropathy to the onset of spinal stenosis in view of his congenitally narrow spinal canal and evidence of degenerative disc disease. At a subsequent VA examination in January 2021, a different VA examiner agreed that the Veteran's low back condition was less likely than not related to active service. The examiner reasoned that although service treatment records show evidence of thoracolumbar strain in May 1966 and Jan 1967, there was no further follow-up. The separation examination also shows no evidence of any chronic back pain and examination was normal at the time. Post-service records are silent for back pain until 2005 which is almost 40 years after service. Post-service records also indicate that the Veteran's current back issues are due to his employment at American Airlineswith no evidence of thoracic strain. All of his current chronic back conditions are due to spondylolisthesis, degenerative arthritis and IVDS for which he had multiple surgeries for and are not the same condition he had during service. He was noted to have a long history of these problems due to his work with American Airlines, to include working on carts and bending down a great deal. Due to the lack of continuity of symptoms from what occurred during the service, it is less likely than not that there is a current spondylolisthesis, degenerative arthritis of the spine condition that was caused by or incurred with diagnoses of thoracolumbar strain during service. The Board finds the medical opinions of record persuasive and highly probative. Multiple qualified medical professionals reached the common conclusion that the Veteran's current low back condition is not related to service, to include as secondary to his service-connected bilateral lower extremity peripheral neuropathy. The examiners emphasized that no treatment for a low back condition exists in the record until several decades after separation from service, the Veteran's current low back conditions are not the same as those noted during service, and his current low back conditions are most likely related to his civilian employment. As part of this claim, the Board recognizes the statements from the Veteran regarding the relationship between his low back condition and active service. Nevertheless, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's low back condition are found to lack competency. Considering the above discussion, the Board concludes that the preponderance of the evidence is against his claim of service connection for a low back disability and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. 2. Entitlement to service connection for a heart condition. The Veteran contends that his heart condition is related to his service-connected bilateral lower extremity peripheral neuropathy. After a review of the evidence, the Board finds that service connection is not warranted. A review of the Veteran's service treatment records does not show treatment for or complaints of any heart related conditions during active service. His separation examination is normal with no noted heart issues. He was diagnosed with arteriosclerotic heart disease after heart surgery in May 2015 and coronary artery disease (CAD) in August 2019. As an initial matter, the Board notes that the record does not show, nor does the Veteran contend, that he suffered from any heart condition during service. Rather, he has continuously argued that his heart condition is attributable to his bilateral leg disability. In addition, the Veteran has continuously denied exposure to Agent Orange during service. In December 2020, a VA examiner opined that the Veteran's heart condition was less likely than not related to active service. The examiner reasoned that there is no evidence of a cardiac condition arising in service. The Veteran has been diagnosed with CAD, status post bypass. He denies exposure to Agent Orange. In the absence of conceded Agent Orange exposure, there is no evidence to show that his cardiac condition is due to or incurred in service. Hence, the evidence does not show an in-service event that would support an award of service connection on a direct or presumptive basis. Next, The Board will address service connection on a secondary basis. In this regard, the Veteran originally argued that his heart problems, described as shortness of breath with palpations, were attributable to circulation problems related to his service-connected bilateral lower extremity peripheral neuropathy. At his March 2018 hearing, the Veteran further testified that he believed a blood clot had traveled from his legs to his heart leading to open heart surgery. The Veteran was afforded a VA examination in August 2019. The examiner noted a diagnosis of CAD. After review of the record and in-person examination of the Veteran, the examiner opined it is less likely than not the Veteran has a cardiac condition caused by the nerve damage in his feet due to cold injury. The examiner acknowledged that a review of the claims file shows objective evidence of a service-connected bilateral cold injury of the feet. Further, the claims file also shows objective evidence of s/p Coronary Bypass Graft due to CAD and that the Veteran subsequently had a stroke immediately after surgery. However, the cold injury of the Veteran's feet is a nerve condition which caused damage to the nerves directly in the feetan axonal injury. His heart condition was caused by CAD which involves plaques and hardening of the arteries due to atherosclerosis. The current medical literature does not support or mention an axonal nerve injury causing a cardiac condition. The cold injury involves nerves where the CAD involves the vascular system. The two conditions are not medically related. The Board affords substantial probative value to the opinion of the August 2019 VA examiner. It was rendered by a qualified medical professional after examination of the Veteran and application of the facts to current medical knowledge. Again, the Board recognizes the statements from the Veteran regarding the relationship between his heart condition and his service-connected bilateral leg condition. Nevertheless, while he is competent to provide testimony regarding observable symptomatology, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body and interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d @ 1377 n.4. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's heart condition are found to lack competency. The Board finds that the preponderance of the evidence weighs against finding that the Veteran's current heart condition is related to service, to include as secondary to his service-connected bilateral leg disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990). For these reasons, the claim is denied. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here 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." 38 C.F.R. § 4.7. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. 3. Entitlement to a compensable rating for bilateral hearing loss. The Veteran contends that his bilateral hearing loss warrants a compensable rating. After a review of the evidence, the Board finds that a compensable rating is not warranted. The Veteran underwent a VA examination (with audiometric evaluations) in August 2014 to evaluate the severity of his bilateral hearing loss. On that occasion, the Veteran reported difficulty understanding speech during noise and in groups. The Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 65 75 49 LEFT 20 30 65 80 49 The speech recognition scores on the Maryland CNC word list were 96 percent for the right ear, and 98 percent for the left ear. Applying the test results of the September 2017 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right ear and Level I for the left ear. The result corresponds with a noncompensable disability rating for bilateral hearing loss. The Veteran reported at his March 2018 hearing that his hearing loss had worsened since his previous VA examination. He was afforded another VA examination in August 2019. On that occasion, the Veteran reported that he could hear noises but could not make them out. Specifically, he must "turn the T.V. up to make out what they are saying" and must ask people to repeat themselves when driving. The Maryland CNC Word List speech recognition scores and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 40 70 70 51 LEFT 20 25 65 70 45 The speech recognition scores on the Maryland CNC word list were 92 percent for the right ear, and 94 percent for the left ear. Applying the test results of the September 2017 VA examination report to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right ear and Level I for the left ear. The Board further notes that an exceptional pattern of hearing loss has not been shown. Hence, the result still corresponds with a noncompensable disability rating for bilateral hearing loss. The Board has also considered the Veteran's statements that his hearing loss is worse than the rating he receives. Martinak v. Nicholson, 21 Vet. App. 447 (2007). As such, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms of hearing loss, as this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of hearing loss according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). On the other hand, such competent evidence concerning the extent of the Veteran's hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report) directly address the criteria under which this disability is evaluated. In summation, the Board finds that the audiometric evaluation of record shows that a compensable rating for bilateral hearing loss is not warranted for the period under consideration. 4. Entitlement to individual disability ratings greater than 20 percent for bilateral lower extremity peripheral neuropathy. The Veteran seeks higher individual ratings for his bilateral lower extremity peripheral neuropathy than the 20 percent he already receives. In addition, he asserts that his condition has worsened during the course of the appeal. After a review of the evidence, the Board finds that individual ratings of 40 percent, but no higher, are warranted throughout the period on appeal. The Veteran's bilateral lower extremity peripheral neuropathy is rated under 38 C.F.R. § 4.124a, DC 8520, which addresses paralysis of the sciatic nerve. Under this diagnostic code, a 10 percent rating is warranted when there is incomplete paralysis that is "mild" in nature; a 20 percent rating is warranted when the condition is "moderate" in nature; a 40 percent rating is warranted when there is incomplete paralysis that is "moderately severe" in nature; a 60 percent rating is warranted when the paralysis is "severe, with marked muscle atrophy;" and an 80 percent rating is warranted when there is complete paralysis of the foot. As to severity, the Veteran underwent a VA examination in March 2013. He endorsed moderate intermittent pain with both severe numbness and severe paresthesia/dysesthesia. He reported that the pain and numbness had worsened in recent years. Per examination, his lower extremity reflexes and sensation for light touch were normal except for decreased sensation in the foot/toes bilaterally. His muscle strength was normal and no atrophy or ankylosis was found. He reported occasional use of a cane for assistance. The examiner noted moderate incomplete paralysis of the sciatic nerve bilaterally. At another VA examination in August 2014, the Veteran endorsed mild constant pain, moderate intermittent pain, moderate numbness, and moderate paresthesia/dysesthesia. On this occasion, the examiner noted a complete absence of sensation for light touch in the foot/toes bilaterally. The Veteran has attested to stumbling and falling as a result of his bilateral leg pain and numbness. At his March 2018 hearing, the Veteran clarified that he has no feeling in the front half of his feet, approximately from the arches through the toes. As a result, he has extreme difficulty walking. He indicates that his ability to walk distances has been greatly reduced due to the pain and numbness in his legs. Based on the lay and medical evidence of record, the Board finds that the Veteran's bilateral lower extremity neuropathy has been manifested by symptoms most accurately characterized as moderately severe under the applicable rating criteria. He has continuously complained of difficulty walking due to the pain and numbness in his legs. Medical examination has shown minimal to no sensation in the Veteran's toes and feet. As a result, he stumbles and suffers from falls. However, at no time during the appeal does the evidence show atrophy or complete paralysis. Therefore, individual 40 percent ratings, but no higher, are warranted for the period on appeal. The Board has also considered ratings under 38 C.F.R. § 4.104, Diagnostic Code 7122, regarding cold injury residuals. However, the highest rating under that diagnostic code is 30 percent. As the Veteran is in receipt of 40 percent ratings, a higher rating under diagnostic code 7122 is unavailable. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel