Citation Nr: 22012217 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-35 616 DATE: March 2, 2022 ORDER Service connection for left upper extremity radiculopathy (claimed as left arm injury), as secondary to service-connected burn scar of left mid deltoid is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. FINDINGS OF FACT 1. A left upper extremity disability was not present in service or for years thereafter, and is not etiologically related to service or a service-connected disability. 2. Hearing loss was not present in service or for years thereafter, and is not etiologically related to active military service. 3. Tinnitus was not present in service or for years thereafter, and is not etiologically related to active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for left upper extremity radiculopathy (claimed as left arm injury), have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1969. The Veteran testified before the undersigned at an October 2021 Board Virtual hearing. The hearing transcript is of record. SERVICE CONNECTION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including radiculopathy (organic diseases of the nervous system), to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Specific to claims for service connection, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Sensorineural hearing loss is subject to service connection based upon continuity of symptomatology as an "organic disease of the nervous system" under 38 C.F.R. § 3.309 (a). Any other form of hearing loss, such as conductive hearing loss, is not subject to service connection based upon continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Accordingly, in this case, the Veteran's claims of continuity of symptomatology have been considered and addressed. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310; see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. 1. Service connection for left upper extremity radiculopathy (claimed as left arm injury), to include as secondary to service-connected burn scar of left mid deltoid The Veteran has not asserted, nor does the record reflect that his left upper extremity radiculopathy first manifested during service or were otherwise related to any aspect of his service. It has only been claimed that the disability is secondary to the service-connected burn scar of left mid deltoid. Rather, the Veteran contends that his currently diagnosed left upper extremity radiculopathy developed as a result of his service-connected burn scar of the left upper arm. Specifically, he contends that he sustained a chemical burn to his left upper arm in service, and that he has been having pain in the arm since that time, which has worsened since his discharge, and that he now also experiences neurological symptoms, such as weakness and numbness, in the left arm and hand. Accordingly, since the Veteran does not contend that his left upper extremity radiculopathy is directly related to service and because the record similarly does not reasonably raise the theory of direct service connection, the Board will address only whether the Veteran is entitled to service connection for this disability on a secondary basis. See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008) (concluding "that the Board is not required sua sponte to raise and reject 'all possible' theories of entitlement in order to render a valid opinion" and "commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (stating that "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"). On VA examination in July 2013, the Veteran was noted to have a well-healed scar of the left upper arm with no involvement of the left shoulder. VA treatment records dated in December 2013 show a well-healed scar with no sensory deficit. The assessment was likely neuropathic pain in the left arm and probable lipoma of the left arm, nickel size, which was not bothering the Veteran, with no pain. On VA examination in May 2014, the Veteran reported limitation of function. Specifically, he reported that when in pain, his arm would go numb and he could not do anything. He also reported tenderness at the left deltoid area, decreased sensation at the lateral side of the upper arm, and decreased muscle strength of left shoulder abduction. VA treatment records dated in September 2014 noted a diagnosis of probable rotator cuff tear pain superimposed on chronic painful area from previous acid burn. The provider noted that although the Veteran was convinced that his pain was from the original injury in service, that pain did not explain his recent weakness or loss of motion. The provider concluded that the Veteran probably had a new problem in proximity to his old wound, which was a rotator cuff injury. The Veteran was afforded a VA examination in September 2014. The examiner diagnosed peripheral neuropathy of the left upper extremity, which he opined was at least as likely as not proximately due to or the result of the service-connected burn scar of the left mid deltoid. The rationale was that according to medical research, patients with extensive burns require attention to specific long-term complications, including sensory loss, hyperpigmentation, and hypertrophic scars. The depth of injury (partial thickness versus full thickness) determines specific long-term complications (e.g., sensory loss due to nerve damage and full-thickness injury leading to impairment of sweat glands). The Board finds that this is a generalized opinion, in that the examiner does not identify any specific information about this particular Veteran to show why his particular burn would have caused long-term neurological complications in his left upper extremity. As such, the Board finds the opinion inadequate for evaluation purposes. An addendum opinion was submitted in September 2014. The examiner opined that it is less likely than not that the current left upper extremity pain and/or radiculopathy is related to the service-connected burn scar. The rationale was that the Veteran has a history of a left upper extremity scar in 1968, that was noted to be a superficial scar that was treated only with antibiotic impregnated gauze. The scar healed within days, without residual. More recently, over the last 2-3 days, and greater than 40 years after the original injury, the Veteran has complained of pain, weakness, and numbness to the left upper extremity, in the area that is near the scar. However, this appears to be an unrelated diagnosis. He has cervical spine degenerative disc disease (DDD) noted on X-ray and symptoms consistent with radiculopathy. This is the only adequate medical opinion of record. There is no other evidence, VA or private, which indicates that the Veteran's left upper extremity radiculopathy may be related to his service-connected burn scar of left mid deltoid. The Board acknowledges the Veteran's assertion that his left upper extremity radiculopathy is due to his service-connected burn scar. The Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability. However, the Board finds that in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed left upper extremity radiculopathy and a service-connected disability, as it would require medical expertise to say that the current left upper extremity radiculopathy, identified after service, is the result of a service-connected disability. The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his left upper extremity radiculopathy. 38 C.F.R. § 3.159 (a)(1), (2). There is no competent evidence relating the Veteran's left upper extremity radiculopathy to a service-connected disability. Absent such evidence, the Veteran's claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claim and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. 2. Service connection for bilateral hearing loss 3. Service connection for tinnitus The Veteran contends that his currently diagnosed bilateral hearing loss and tinnitus are related to noise exposure during service. Service treatment records are negative for any evidence of hearing loss or tinnitus during active duty or at discharge. Post-service medical records show diagnoses and treatment for hearing loss and tinnitus many years after the Veteran's discharge. However, these records do not show that the diagnosed hearing loss or tinnitus are related to the Veteran's active military service. A June 2016 VA examiner opined that the Veteran's diagnosed bilateral sensorineural hearing loss was not at least as likely as not caused by or a result of an event in military service, including military noise exposure. The rationale was that the Veteran's military occupational specialty was food service specialist, which indicates a low probability for noise exposure. Furthermore, the Veteran denied ear pathology, familial hearing loss, and recreational noise exposure, but his civilian occupation is musician. On separation examination in 1969, all frequencies tested indicated normal hearing sensitivity, bilaterally. The June 2016 VA examiner also opined that the Veteran's reported tinnitus is not related to service. The rationale was that the Veteran had a low probability for noise exposure and his hearing was normal, bilaterally at separation. The Board notes that service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. The Board also notes that the June 2016 examiner's opinion on the etiology of the Veteran's tinnitus is not perfect, in that the examiner essentially concluded that as the Veteran's hearing loss is not related to service, his tinnitus is also not related to service. The United States Court of Appeals for Veterans Claims (Court) has unambiguously stated that "tinnitus and hearing loss are recognized by the Secretary as separate and distinct disabilities." Monzingo v. Shinseki, 26 Vet. App. 97, 104-05 (2012). Therefore, the conclusion that hearing loss is not related to service does not automatically lead to the conclusion that tinnitus is also not related to service. However, given the lack of evidence of hearing loss or tinnitus at discharge, and the decades-long gap between service and the first notation of hearing loss or tinnitus, the Board does not find the Veteran's current accounts of hearing loss or tinnitus since service to be credible. As such, the Board finds the June 2016 VA examiner's opinion is supported, and another examination is not necessary. There is no other medical evidence of record, VA or private showing that the Veteran's current hearing loss or tinnitus are related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of hearing loss or tinnitus, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a bilateral hearing loss or tinnitus. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges the Veteran's assertion that his bilateral hearing loss and tinnitus are due to active military service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed bilateral hearing loss or tinnitus and his active service. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his bilateral hearing loss or tinnitus. 38 C.F.R. § 3.159 (a)(1), (2). For the reasons and basis stated above, the Board finds that service connection for bilateral hearing loss or tinnitus is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the evidence is persuasively against the claims and the positive and negative evidence is not nearly in balance, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. Yankey, 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.