TINNITUS

MICHAEL LANE · 2018 · Case ID: 1819485

MIXED

Summary

The Veteran, an Army Veteran who served from November 1969 to May 1972, including service in Vietnam, appeals the denial of service connection for tinnitus and bilateral lower extremity peripheral neuropathy, and seeks service connection for bilateral upper extremity peripheral neuropathy. The Board granted service connection for tinnitus, finding that resolving reasonable doubt in the Veteran's favor, the criteria were met, despite conflicting evidence on the onset date. The Board also granted service connection for bilateral lower extremity peripheral neuropathy secondary to his service-connected diabetes mellitus, finding the balance of evidence favored the Veteran, noting a factual error in a VA opinion that relied on an incorrect diabetes diagnosis date. The claims for bilateral upper extremity peripheral neuropathy were remanded for further development. The Board noted conflicting evidence regarding the etiology of the upper extremity symptoms, including diagnoses of compression neuropathy and cervical degenerative disc disease, and requested clarification on whether these symptoms are secondary to or aggravated by his service-connected diabetes mellitus.

Rationale

Veteran claimed onset in service; Conflicting evidence on onset date; Supportive private medical opinions and VA audiological exam; Benefit of the doubt applied

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

14-20 463

Full Decision Text

Citation Nr: 1819485
Decision Date: 04/03/18 Archive Date: 04/12/18

DOCKET NO. 14-20 463 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado

THE ISSUES

1. Entitlement to service connection for tinnitus.

2. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus.

3. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus.

4. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus.

5. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to service-connected diabetes mellitus.

REPRESENTATION

Veteran represented by: Colorado Division of Veterans Affairs

WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

Rachel E. Jensen, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from November 1969 to May 1972, to include service in the Republic of Vietnam.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

In August 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's claims file.

The Board notes that a VA audiological examination was conducted in August 2017 in conjunction with the Veteran's claim for an increased rating for his service-connected bilateral hearing loss that is relevant to the claim to service connection for tinnitus. The RO did not issue a Supplemental Statement of the Case and the Veteran has not waived RO consideration of this additional evidence. 38 C.F.R. § 20.1304(c). However, as the decision herein on that claim comprises a full grant of the benefits sought, there is no prejudice to the Veteran.

The Board also notes that the Veteran submitted new evidence relevant to his claims for entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy along with his September 2015 substantive appeal. The RO did not issue a Supplemental Statement of the Case, and it appears the new evidence was never considered. As this decision comprises a full grant of the benefits sought in the claims for lower extremity peripheral neuropathy, there is no prejudice to the Veteran on those claims. As the upper extremity peripheral neuropathy claims are being remanded for further development, no further harm on those claims has occurred.

The issues of entitlement to service connection for left upper extremity peripheral neuropathy and entitlement to service connection for right upper extremity peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. There is an approximate balance of evidence on the question of whether the Veteran's tinnitus had its onset in service.

2. The Veteran was diagnosed with diabetes mellitus prior to the onset of neuropathic symptoms of the lower extremities.

3. The Veteran has been diagnosed with diabetic peripheral neuropathy of the left lower extremity.

4. The Veteran has been diagnosed with diabetic peripheral neuropathy of the right lower extremity.

CONCLUSIONS OF LAW

1. Resolving reasonable doubt in the Veteran's favor, the criteria to establish service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 5103, 5103a, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303 (2017).

2. The criteria for service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.310 (2017).

3. The criteria for service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303,
extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.310 (2017).

3. The criteria for service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103a, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Generally, in order to prove service connection, there must be 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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).

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303.

The applicability of the theory of continuity of symptomatology in service connection claims are to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Fountain v. McDonald, 27 Vet. App. 258 (2015), added tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). Because tinnitus has been found to be a chronic disease, the Board finds that the theory of continuity of symptomatology in service connection claims is applicable to this claim.

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Tinnitus

The Veteran contends that his diagnosed tinnitus had its onset in service. His service treatment records are silent as to any complaints of symptoms, treatment, or diagnoses of tinnitus or other hearing impairment. He worked as a helicopter and aircraft mechanic, repairman, and door gunner, and exposure to acoustic trauma has been
(en banc).

I. Tinnitus

The main conflict in the record is over when the Veteran began to experience tinnitus symptoms. An Agent Orange physical examination recorded that the Veteran suffered from tinnitus since about 1980, whereas a June 2007 VA examination recorded the date of onset in the mid-1990s. The Veteran has stated to clinicians, submitted statements to VA, and testified that he experienced ringing in his ears since his time serving on helicopters in Vietnam.

Numerous private opinions and an August 2017 VA examination found that the Veteran's tinnitus is at least as likely as not associated with his diagnosis of clinical hearing loss, and at least as likely as not caused by military noise exposure. Several earlier VA opinions found the Veteran's tinnitus to not be related to service, given the notation of onset in the mid-1990s.

The Board finds the Veteran's lay statements regarding onset in service and the supportive medical opinions of record to be highly probative. Regarding the conflicting evidence on onset of symptoms, VA Training Letter 10-02 states that "The onset may be gradual or sudden, and individuals are often unable to identify when tinnitus began. Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs. Therefore, delayed-onset tinnitus must be considered." As such, even if the Board did not find the Veteran's statements regarding continuity of symptomatology to be credible, the private medical opinions which have attributed his tinnitus to auditory nerve damage and suggested that a delayed onset is expected in such cases, weigh in favor of the Veteran's claim.

Given the above, the Board concludes that, resolving all doubt in favor of the Veteran, service connection for tinnitus is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

II. Lower Extremity Peripheral Neuropathy

The Veteran has contended that his service-connected diabetes has resulted in bilateral lower extremity peripheral neuropathy.

The medical evidence of record indicates that the Veteran has been diagnosed with diabetes mellitus and peripheral neuropathy of the bilateral lower extremities. There are conflicting medical opinions as to the etiology of the peripheral neuropathy.

A January 2007 VA Agent Orange examination indicated the Veteran had been told he could develop diabetes mellitus. The Veteran also reported numbness in his left leg ("like it is going to sleep") to the examiner.

A letter from the Veteran's private treating physician from August 2012 noted that the Veteran had been diagnosed with diabetes in November 2006 but he had not had evidence of neuropathy upon examination. A June 2013 VA diabetes mellitus examination found the Veteran had a diagnosis of diabetes since November 2006. A June 2013 VA peripheral neuropathy examination noted the Veteran's reports of intermittent episodes of abnormal, "pins and needles" sensation in his feet and lower legs for approximately two years, but relied upon the August 2012 letter and found no clinical evidence of diabetic peripheral neuropathy.

The Veteran underwent another VA examination in May 2014 which noted that he was diagnosed with diabetes in early 2013. The Veteran's symptoms were described as tingling and numbness in his feet starting approximately 2009, varying in pain level and frequency. The examiner determined that the Veteran had lower extremity diabetic peripheral neuropathy with involvement of the sciatic nerve, resulting in mild, incomplete paralysis bilaterally.

The Veteran underwent another VA examination in August 2015. Symptoms were described as intermittent numbness and tingling in his feet, present about 70 percent of the time. Mild, incomplete paralysis of the musculocutaneous and anterior tibial nerves were found in the lower extremities bilaterally. The examiner found, relying upon the 2013 diabetes diagnosis date listed in the May 2014 VA examination, that because the Veteran was diagnosed with diabetes after he reported first experiencing neuropathic symptoms, his bilateral lower extremity peripheral neuropathy could not be due to diabetes mellitus.

The Veteran's private physician submitted a letter
involvement of the sciatic nerve, resulting in mild, incomplete paralysis bilaterally.

The Veteran's private physician submitted a letter in September 2015 that the Veteran was seen in December 2006 with elevated blood sugar and diagnosed with glucose intolerance. In March 2007, he was diagnosed with non-insulin dependent diabetes mellitus.

At the August 2017 hearing, the Veteran reported that, after his diabetes diagnosis in 2007, he began noticing neuropathic symptoms in his feet. He stated that he used to play a lot of golf, but could no longer walk the course.

Another letter from the Veteran's private physician was submitted in August 2017 which stated that the Veteran had peripheral neuropathy by history secondary to diabetes mellitus.

The Board finds that the balance of evidence weighs in the Veteran's favor. His treating physician diagnosed him with pre-diabetes or diabetes as early as 2006 or 2007. He was subsequently diagnosed with diabetic peripheral neuropathy of the bilateral lower extremities at the May 2014 VA examination. The Veteran's treating physician confirmed that his peripheral neuropathy was secondary to his diabetes mellitus.

The August 2015 VA examiner found that the Veteran had bilateral peripheral neuropathy of the lower extremities. The only rationale given for the condition not being secondary to diabetes was based on an erroneous date of diabetes diagnosis, which suggests that the May 2014 VA examination report was reviewed, but perhaps the entire record was not. Given the factual error underlying the August 2015 VA opinion, it is less probative than the other VA and private medical evidence of record. As the Veteran has been diagnosed with diabetes mellitus, has been subsequently diagnosed with diabetic peripheral neuropathy of the bilateral lower extremities, and no other cause of his neuropathic symptoms has been suggested, service connection on a secondary basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.310.

ORDER

Service connection for tinnitus is granted.

Service connection for left lower extremity peripheral neuropathy is granted.

Service connection for right lower extremity peripheral neuropathy is granted.

REMAND

There are several indications in the record that the Veteran suffers from numbness, tingling, and pain in his upper extremities. However, there is conflicting evidence as to the cause of these symptoms.

At the January 2007 VA Agent Orange examination, the Veteran reported that he experienced numbness in his left arm, as if it were falling asleep.

Beginning in September 2013, the Veteran reported left arm pain to VA clinicians. An MRI of the neck and electromyography (EMG) were ordered. The MRI revealed cervical degenerative disc disease and the EMG suggested median and ulnar compressive neuropathy at left wrist and elbow and residua of brachial plexitis or central nervous system insult. The right median motor nerve showed reduced amplitude, as well.

A May 2014 VA examiner determined the Veteran had a diagnosis of bilateral carpal tunnel syndrome, but also found upper extremity diabetic peripheral neuropathy.

In September 2014, the Veteran reported that four to five mornings per week, he would wake up to numbness and tingling from his forearms to his fingers which would resolve in about five minutes. The VA clinician found that this was likely due to his sleeping position causing compression of nerves. The Veteran stated that he was concerned because he noticed it occurring more frequently in his right arm, even when sleeping on his left side. The clinician stated that because the symptoms resolved so quickly upon waking and the Veteran denied problems throughout the day, it was most likely due to sleeping position.

In June 2015, the Veteran reported arm numbness to VA clinicians at an annual examination but stated the numbness resolved once he woke up.

An August 2015 VA examiner determined that mild, incomplete paralysis in the left radial, medial, and ulnar nerves, and mild, incomplete paralysis in the right medial and ulnar nerves were not related to the Veteran's service-connected diabetes mellitus. Although he relied upon an incorrect date of diagnosis of the Veteran's diabetes, stating that peripheral neuropathy could not have occurred due to its nature as a late onset type of complication, he found other causes of the neuropathy. He noted that the previous EMG results suggested compressive neuropathy involving the bilateral median nerve and the left ulnar nerve, and stated that compressive neuropathy is caused by a biomechanical compression of the involved nerve and is not due to diabetes. He further found that the Veteran's diagnosis of left brachial plexitis is due to a compression of the brachial plexus and is not caused by diabetes.

The Veteran's private physician submitted a letter stating that the Veteran has peripheral neuropathy secondary to his diabetes mellitus, however the affected nerves were not identified and the previous diagnoses of compression neuropathy were not addressed.

As such, clarity is needed to determine the nature and etiology of the Veteran's symptoms. Accordingly, the claims are remanded for a new VA examination and opinion.

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and request that he provide information as to any outstanding records pertaining to his claimed conditions, specifically to include any outstanding private treatment records. He should be asked to authorize the release of any outstanding pertinent non-VA medical records.

2. Attempt to obtain relevant outstanding VA treatment records.

3. After the above development is completed, schedule a VA peripheral nerves examination with an appropriate medical professional to determine the nature, extent, onset, and etiology of any disorder of the bilateral upper extremities.

The examiner is asked to address the following:

a. Regarding the Veteran's left upper extremity and right upper extremity neuropathy or any other diagnosed sensory disability, whether it is at least as likely as not (probability of 50 percent or better) caused by the service-connected diabetes mellitus; and

b. Whether it is at least as likely as not (probability of 50 percent or better) that any upper extremity peripheral neuropathy was aggravated (i.e., permanently worsened beyond the natural progression) by the Veteran's service-connected diabetes mellitus.

c. If aggravation is found, the examiner should address the baseline manifestations of the disorder found prior to aggravation. The examiner is advised that aggravation is defined for these purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms.

d. The examiner is asked to review all of the claims file, but special attention is directed to the November 2013 diagnoses of compression neuropathy. Discussion of any relevant effect from the Veteran's cervical degenerative disc disease on his upper extremities is also requested.

e. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.

4. Thereafter, readjudicate the issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case to the Veteran. After allowing an appropriate amount of time for response, return the case to the Board for review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate

action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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