Citation Nr: 21031735 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-08 893A DATE: May 24, 2021 ORDER Entitlement to service connection for arthritis is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran's arthritis is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest within one year of service discharge. 2. The Veteran's bilateral hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service and did not manifest within one year of service discharge. 3. The preponderance of the evidence of record does not show a current diagnosis of tinnitus. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for tinnitus are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to September 1970, to include service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal of a July 2017 Department of Veterans Affairs (VA) rating decision. In April 2019, in response to a March 2019 Statement of the Case (SOC) the Veteran submitted a Decision Review Request: Higher-Level Review but did not indicate an intention to "opt-in" his legacy claims into the modernized system. In May 2019 the Veteran was informed that his request for higher level review was rejected as the issues had not been withdrawn from the legacy system and there was no other rating decision addressing those issues within the year prior. In order to resolve the appeal in the Veteran's best interest, his April 2019 filing has been construed as perfecting his legacy appeal stemming from the March 2019 SOC. Entitlement to service connection for arthritis is denied. The Veteran generally asserts that he has arthritis which was incurred as a result of his active-duty service. Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a), (d). Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In his March 2017 VA Form 21-526EZ (Application for VA disability benefits), the Veteran indicated that he was applying for VA benefits related to arthritis. The application did not contain any additional detail with regard to his claimed arthritis. A review of the service treatment records reveals no complaints, findings, or diagnoses related to arthritis, nor is there any evidence of arthritis within one year of discharge from active-duty service. The Veteran's service treatment records are unremarkable for any complaints of, treatment for, or diagnosis of a right knee disorder during active service. Moreover, the Veteran denied any history of arthritis, swollen or painful joints, as well as bone or joint deformity on his August 1970 separation examination report, and clinical evaluation of the upper and lower extremities, spine and other musculoskeletal were normal. Further, a review of the Veteran's post-service medical records shows that the Veteran was first diagnosed with right shoulder osteoarthritic changes in September 2019. Additionally, the Veteran has not specifically asserted that his claimed arthritis had its onset in service, or within one year thereafter nor has he provided any specific etiological theory as to how arthritis is related to service. To the extent that the Veteran believes that right shoulder osteoarthritic changes began during active-duty service, or within one year thereafter, the Veteran is not competent to provide a diagnosis of arthritis or determine that any symptoms were manifestations of arthritis. In this regard, the diagnosis of the Veteran's osteoarthritic changes is medically complex, as a diagnosis of arthritis requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Here, the available evidence preponderates against finding manifestations sufficient to identify right shoulder osteoarthritic changes in active-duty service, or within one year thereafter. Thus, service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309. The evidence also preponderates against finding that right shoulder osteoarthritic changes are directly related to any in-service event or injury. To the extent the Veteran believes his right shoulder osteoarthritis is related to an in-service injury, to include herbicide exposure, he is not competent to provide an opinion in this regard. While the Veteran is competent to report on certain medical issues, he is not competent in this case to link right shoulder arthritis to his active service. An opinion of that nature requires medical expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377. Therefore, the Veteran is not competent to provide an etiology opinion in this case. VA did not obtain an etiology opinion on this issue. VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Here, there is no evidence of right shoulder arthritis until more than four decades after the Veteran's separation from service. The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Moreover, the Veteran has not identified any in-service disease or injury to which this condition can be linked. While the Veteran himself has advanced such a theory, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or etiology opinion is not necessary to decide the claim for service connection for his arthritis. In this case, the Board finds the most probative evidence weighs against the claim. The first complaints and objective evidence of right shoulder arthritis did not occur until more than four decades after service. Thus, the Board finds that presumptive service connection has not been established, and thus, is not warranted for right shoulder arthritis. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Rather, the probative evidence shows that the Veteran's right shoulder arthritis had its onset several years after service, and there is no competent evidence to link the Veteran's right shoulder arthritis with an incident of service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for arthritis is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for bilateral hearing loss is denied. The Veteran contends that he has bilateral hearing loss which is related to in-service noise exposure. The Veteran has a current diagnosis of bilateral hearing loss disability for VA purposes. See 38 C.F.R. § 3.385 (2018). Specifically, a July 2017 VA audiology evaluation revealed audiometric testing results consistent with a diagnosis of bilateral hearing loss disability for VA purposes. Thus, the remaining question is whether the current bilateral hearing loss disability is related to service. Where sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from the date of termination of active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hertz 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. Even though disabling hearing loss is not demonstrated at separation, a veteran may, nevertheless, establish service connection for a current hearing disability by submitting evidence that a current disability is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). In his March 2017 Application for VA disability benefits, the Veteran indicated that he was applying for VA benefits related to bilateral hearing loss. The application did not contain any additional detail with regard to his claimed bilateral hearing loss. The Veteran's DD-214 show a military occupational specialty (MOS) of precision photo processing specialist. The Veteran's service treatment records are unremarkable for any complaints of, treatment for, or diagnosis of a hearing loss disorder during active service. Moreover, the Veteran denied any history of hearing loss on his August 1970 separation examination report, and clinical evaluation of the ears was normal. Further, a review of the Veteran's post-service medical records shows that the Veteran was first diagnosed with hearing loss in July 2017. Based on this evidence, the Board also finds that neither hearing loss, nor manifestations sufficient to identify the disease entity, were shown during service. As such, service connection under 38 C.F.R. § 3.303(b) is not warranted, and bilateral hearing loss may not be presumed to have been incurred in service. 38 U.S.C. § 1101; 38 C.F.R. §§ 3.307, 3.309. Moreover, the Veteran has not specifically asserted continuity of symptomatology since service. Nor is there any medical evidence suggesting a continuity of symptomatology. Thus, the remaining question is whether his current hearing loss is otherwise related to his military service, including his noise exposure therein. At a July 2017 VA examination, the Veteran was diagnosed with bilateral sensorineural hearing loss. The examiner opined that hearing loss was less likely than not related to active-duty service, to include in-service noise exposure. The examiner reasoned that the Veteran's hearing was normal on separation from active-duty service and that there was no evidence that the Veteran's military noise exposure caused a permanent noise injury affecting hearing sensitivity. The Board has also considered the statements of the Veteran asserting that his current hearing loss is related to his active service. However, to the extent that the Veteran is competent to opine on that matter, the Board finds that the specific, reasoned opinion of the VA examiner is of greater probative weight than the Veteran's lay assertions in that regard. The examiner reviewed the claims file and the Veteran's own reported history, and he has training, knowledge, and expertise on which he relied to form his opinion. He also provided a rationale for the conclusion reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this case, the Board finds the most probative evidence weighs against the claim. The first complaints and objective evidence of hearing loss did occur until more than four decades after service. The passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the July 2017 VA examiner opined against the claim and provided sufficient rationale. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claims for service connection for bilateral hearing loss. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for tinnitus is denied. The Veteran generally asserts that he has tinnitus which is related to in-service noise exposure. In his March 2017 Application for VA disability benefits, the Veteran indicated that he was applying for VA benefits related to tinnitus. The application did not contain any additional detail with regard to his claimed tinnitus. On VA examination in July 2017, the Veteran denied "currently having or ever having had any ringing, humming, buzzing or other noise in his head/ears." The examiner concluded that the Veteran did not have a diagnosed tinnitus. Moreover, an October 2010 VA audiological note and a March 2015 VA primary care note show that the Veteran denied experiencing tinnitus. There is no other evidence during the appeal period to support a diagnosis of tinnitus. Because tinnitus is "subjective," its existence is generally determined by whether a person claims to experience it. Tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. Charles v. Principi, 16 Vet. App. 370 (2002). In this case, while the Veteran has submitted a claim for service connection for tinnitus he has never actually described experiencing symptoms of tinnitus, nor has he specifically asserted that he has had tinnitus during the period on appeal. As there is no evidence of a tinnitus disability for which service connection may be granted, service connection is not warranted. The claim is denied. Brammer v. Brown, 3 Vet. App. 223 (1992). REASONS FOR REMAND Entitlement to service connection for bilateral lower extremity peripheral neuropathy and hypertension is remanded. The Veteran contends that he has bilateral lower extremity peripheral neuropathy and hypertension which are related to in-service exposure to herbicide agents while serving in the Republic of Vietnam. The Veteran's personnel records show that he served in Vietnam from March 1968 to September 1968 and herbicide exposure is therefore presumed. "Early-onset peripheral neuropathy" must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection. 38 C.F.R. § 3.307 (a)(6)(ii). VA treatment records note current complaints of lower extremity neuropathy, and in an October 2019 statement the Veteran reported that he "first noticed [his] legs giving [him] a problem about a year after [he] returned from Vietnam." While the record does not currently reflect a diagnosis of "early-onset peripheral neuropathy," remand is required to obtain a VA examination addressing whether the Veteran's lower extremity neuropathy is nonetheless related to his in-service herbicide exposure. The Veteran's VA treatment records contain some elevated blood pressure readings. The National Academy of Sciences Institute of Medicine's Veterans and Agent Orange: Update 2018 (NAS 2018 Update) moved hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. Accordingly, remand is required to obtain a VA examination addressing whether the Veteran has hypertension which is due to his conceded herbicide exposure. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his hypertension. The examiner must answer the following question: a. What hypertension is diagnosed at any time since April 27, 2017? b. For any such hypertension, is it at least as likely as not related to an in-service injury, event, or disease including herbicide exposure in Vietnam? The examiner should consider and discuss the NAS 2018 Update in which it moved hypertension from the "limited or suggestive evidence" category to the "sufficient evidence of an association" category. A medical opinion which concludes that a disease is not related to herbicide exposure solely because there is no presumption of service connection (is not listed in 38 C.F.R. § 3.309) is inadequate. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his bilateral lower extremity peripheral neuropathy. The examiner must answer the following question: a. What right and left lower extremity peripheral neuropathies are diagnosed at any time since April 27, 2017? b. For any such right and left lower extremity peripheral neuropathies, are they at least as likely as not related to an in-service injury, event, or disease including herbicide exposure in Vietnam? A medical opinion which concludes that a disease is not related to herbicide exposure solely because there is no presumption of service connection (is not listed in 38 C.F.R. § 3.309) is inadequate. CHRISTOPHER J. O'DONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Paul J. Bametzreider 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.