Citation Nr: 0810091 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-10 433A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as due to Agent Orange exposure. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for vision loss. 5. Entitlement to service connection for post-traumatic stress disorder (PTSD). 6. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The appellant is a veteran who had active service from June 1963 to June 1966. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for tinnitus is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. FINDINGS OF FACT 1. The veteran served in Vietnam during the Vietnam Era, and is presumed to have been exposed to Agent Orange. 2. Diabetes mellitus was not manifested in service or in the first postservice year; there is no competent evidence that the veteran has a diagnosis of diabetes mellitus. 3. It is not shown that the veteran has a hearing loss disability of either ear by VA standards. 4. Disabilities manifested by vision loss were first manifested many years after service, and are not shown to be related to the veteran's service. 5. A June 2005 written statement signed by the veteran indicated that he wished to withdraw his appeal in the matters of entitlement to service connection for PTSD and hypertension; there is no question of law or fact remaining before the Board in these matters. CONCLUSIONS OF LAW 1. Service connection for diabetes mellitus is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). 2. Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2007). 3. Service connection for vision loss is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 4. The veteran has withdrawn his Substantive Appeal in the matter of entitlement to service connection for PTSD. 38 U.S.C.A. § 7105(d)(5) (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.202, 20.204 (2007). 5. The veteran has withdrawn his Substantive Appeal in the matter of entitlement to service connection for hypertension. 38 U.S.C.A. § 7105(d)(5) (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters PTSD and Hypertension Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a written statement signed by the veteran in June 2005, he withdrew his appeal in the matters of service connection for PTSD and hypertension. Hence, there is no allegation of error of fact or law for appellate consideration on those issues. Accordingly, the Board does not have jurisdiction to consider an appeal in those matters, and the appeal in these matters must be dismissed without prejudice. Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Via letter in September 2003, the veteran was informed of the evidence and information necessary to substantiate his claims, the information required of him to enable VA to obtain evidence in support of his claims, the assistance that VA would provide to obtain evidence and information in support of his claims, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. The VCAA letter informed the veteran that he should submit any medical evidence pertinent to his claims. The March 2005 statement of the case provided the laws and regulations regarding service connection. Although complete VCAA notice was not provided to the veteran prior to the initial adjudications in these matters, he has had ample opportunity to supplement the record and to participate in the adjudicatory process following notice. The veteran is not prejudiced by any notice deficiency, including in timing, earlier in the process. The veteran did not receive timely notice regarding disability ratings or effective dates of awards (Dingess v. Nicholson, 19 Vet. App. 473 (2006)); a March 2006 letter provided such notice. Regardless, this decision denies service connection, and neither the rating of a disability nor the effective date of an award is a matter for consideration. Hence, the veteran is not prejudiced by any timing defect of this notice. The veteran's service medical records (SMRs) are associated with his claims file, as are his VA and private treatment records. He was afforded VA examinations in January 2004. He has not identified any pertinent records that remain outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of these claims. II. Factual Background The veteran's SMRs do not show any complaints or findings of hearing loss, vision loss, or diabetes mellitus. In his report of medical history at the time of separation from service in June 1966, the veteran specifically denied any hearing loss or eye trouble. The separation examination found 20/20 vision in each eye. Enlistment audiometry showed that puretone thresholds were (ASA values converted to ISO values for consistency): HERTZ 500 1000 2000 4000 RIGHT 25 20 20 20 LEFT 25 20 20 15 The separation examination showed puretone thresholds were (again converted to ISO values for consistency): HERTZ 500 1000 2000 4000 RIGHT 15 10 10 5 LEFT 15 10 10 5 A March 2001 private treatment record noted age-related macular degeneration of both eyes; epiretinal membrane, both eyes; hypertensive retinopathy, both eyes; chronic open-angle glaucoma, both eyes; and temporal pallor, both eyes. VA eyes examination in January 2004 noted optic atrophy of both eyes, most likely secondary to glaucoma; pseudophakia, both eyes; and macular epiretinal membrane, both eyes. VA audiometry in January 2004 showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 25 35 30 LEFT 5 20 25 35 35 Speech audiometry revealed that speech recognition was 96 percent in the right ear and 100 percent in the left ear. The examiner noted mild sensorineural hearing loss at 3000 and 4000 hertz in both ears. On VA examination in January 2004, the veteran reported that two years earlier his private physician had warned him to stay away from sugar and sweets because he was borderline diabetic. The veteran further stated that he had not been prescribed any medication for diabetes, and he did not know whether he had diabetes mellitus or not. Diagnostic testing found no evidence of diabetes at this time. III. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 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. Diabetes mellitus and sensorineural hearing loss (as an organic disease of the nervous system) are chronic diseases which may be presumptively service connected if manifested to a compensable degree in the first postservice year. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail in a claim seeking service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the current disability and the disease or injury in service. See Hickson v. West, 12 Vet. App. 247 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Diabetes Mellitus A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases (to include type 2 diabetes mellitus) may be service connected on a presumptive basis. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The threshold question in the matter of entitlement to service connection for diabetes mellitus is whether the veteran, in fact, has such disability. While he is presumed to have been exposed to Agent Orange by virtue of his service in Vietnam, and type 2 diabetes mellitus is a disability for which service connect ion may be presumptively established based on such exposure, to establish service connection for such disability he still must show that he has a diagnosis of type 2 diabetes. The veteran's SMRs, including his service separation examination report, are silent for complaints, findings, or diagnosis of diabetes. The VA examination in January 2004 found no evidence of diabetes mellitus. There is no competent (medical) evidence that the veteran has a diagnosis of diabetes mellitus; in fact, he conceded as much at the examination in January 2004. Without any competent evidence that the veteran actually has diabetes mellitus, there is no valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the veteran indicated that he had been told he was a "borderline" diabetic, there is no authority in governing law for granting service connection for a pre-diabetic state. As the threshold requirement of a medical diagnosis of the disability for which service connection is sought is not met, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). There is no need for the analysis to proceed any further. Hearing Loss Hearing loss disability is defined by regulation. For the purpose of applying the laws administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of those 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. There is no competent (medical) evidence that the veteran has hearing loss by VA standards; thus, the record contains no evidence of current disability for VA compensation purposes. In the absence of proof of current disability, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Given the lack of proof of current hearing loss, analysis of the claim need not proceed further. However, it is noteworthy that the veteran's SMRs are silent for findings of that disability, and there is no medical evidence of sensorineural hearing loss within the first postservice year. Consequently, 38 U.S.C.A. § 1112 chronic disease presumptions for hearing loss (as an organic disease of the nervous system) do not apply. The veteran's own statements to the effect that he has hearing loss that is related to his active service do not constitute competent evidence, as he is a layperson. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 45 (1992). The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine does not apply. Vision Loss After reviewing the evidence of record, the Board finds that service connection for vision loss is not warranted. As was previously noted, the veteran's SMRs are silent for any findings of vision loss. His separation examination found 20/20 vision in each eye. Furthermore, there is no postservice medical evidence of an acquired eye disability until 2001, more than 30 years after the veteran's discharge. Such a long interval between service and the initial postservice medical documentation of a disability is, of itself, a factor against a finding that such disability is service-connected. See Maxson v. Gober, 230 F 3d 1330, 1333 (Fed. Cir. 2000). Current diagnoses of glaucoma, cataracts, hypertensive retinopathy, and macular degeneration have not been medically associated with the veteran's period of active service in the 1960s. The Board has also considered the veteran's statements to the effect that his current vision loss is attributable to an inservice cause. However, as a layperson, he is not qualified to render a medical diagnosis or an opinion concerning medical causation. See Espiritu, supra. The Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. ORDER Service connection for diabetes mellitus is denied. Service connection for hearing loss is denied. Service connection for vision loss is denied. The appeal in the matter of entitlement to service connection for PTSD is dismissed. The appeal in the matter of entitlement to service connection for hypertension is dismissed. REMAND The veteran contends that he has tinnitus as a result of noise exposure in service. On VA audiological evaluation in January 2004 the veteran's complaints of tinnitus three times per week were noted. While the examining audiologist noted the veteran's normal hearing testing in service, and stated that his hearing loss was most likely related to his diabetes mellitus as opposed to noise exposure in the military, his opinion included the following, seemingly contradictory statement: "[I]t is the opinion of this examiner that the veteran's current hearing loss and tinnitus are at least as likely as not related to his military experience." No further explanation was given. In view of the discrepancy in the audiologist's opinion, the report must be returned for clarification. Accordingly, the case is REMANDED for the following action: 1. The RO should return the claims folder to the VA audiologist who conducted the January 2004 examination of the veteran and request a clarification of his statement that "the veteran's current hearing loss and tinnitus are at least as likely as not related to his military experience" in light of the contradictory statement in the same report to the effect that the veteran had normal hearing testing in service and that his hearing loss was most likely related to his diabetes mellitus as opposed to noise exposure in the military. The audiologist must explain the rationale for all opinions given. (If the January 2004 audiologist is no longer employed by VA or is otherwise unavailable, then an opinion by another VA audiologist addressing this discrepancy should be obtained.) 2. The RO should then readjudicate the claim of service connection for tinnitus. If it remains denied, the veteran and his representative should be furnished an appropriate SSOC and afforded the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs