Citation Nr: 1007493 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-36 116 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada THE ISSUES 1. Entitlement to service connection for diabetes mellitus, including as due to herbicide exposure. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 decision by the RO in Reno, Nevada that in pertinent part, denied service connection for diabetes mellitus, bilateral hearing loss, and tinnitus. Following the issuance of the October 2008 statement of the case, the Veteran's substantive appeal did not include the issue of service connection for a back disability. Accordingly, that issue is not in appellate status and will not be addressed by the Board. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302 (2009). FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of diabetes mellitus. 2. The Veteran currently has bilateral hearing loss which was neither incurred in nor aggravated by active service. 3. The Veteran currently has tinnitus which was neither incurred in nor aggravated by active service. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by active service, nor may it be presumed to have been incurred or aggravated therein. 38 U.S.C.A. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). 2. Bilateral hearing loss was not incurred in or aggravated by the Veteran's active military service, nor may sensorineural hearing loss be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2009). 3. Tinnitus was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in January 2007. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. Although the report of a September 2008 VA diabetes examination refers to a 2006 "Agent Orange" examination which is not of record, the Board finds that a remand to obtain the report of this examination is not necessary, because the more recent medical evidence demonstrates that the Veteran does not currently have diabetes mellitus, as required for service connection. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). See also 38 U.S.C.A. § 5103A (West 2002); Wensch v. Principi, 15 Vet. App. 362, 368 (2001); 38 C.F.R. § 3.159(c) (2009). Despite a request by the RO to the Veteran for a signed authorization to release medical records identified by the Veteran in his November 2006 claim, so that the RO could attempt to obtain these records, the Veteran has not submitted such an authorization, nor has he submitted any pertinent private medical records regarding hearing loss, tinnitus, or diabetes mellitus. In February 2008, he said that he was giving up trying to obtain some of his medical records. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus or sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, 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.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, a veteran who had active service in the Republic of Vietnam from January 9, 1962, to May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service. When such a veteran develops a disorder listed in 38 C.F.R. § 3.309(e), such as type II diabetes mellitus, to a degree of 10 percent or more within the specified period, the disorder shall be presumed to have been incurred during service. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e); Brock v. Brown, 10 Vet. App. 155, 162 (1997). Additionally, the Veteran is not precluded from presenting proof of direct service connection. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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 a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 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. Diabetes Mellitus The Veteran contends that he has diabetes mellitus due to herbicide exposure during service in Vietnam. The record reflects that the Veteran served in Vietnam during the Vietnam era, and therefore is presumed to have been exposed to herbicides. Service treatment records are negative for diabetes mellitus. Post-service medical records are entirely negative for a diagnosis of diabetes mellitus. At a September 2008 VA examination, the Veteran reported that he had a blood glucose level of 129 in a blood test performed in 2006, and the VA examiner noted that a September 2006 Agent Orange examination showed that he was diagnosed with glucose intolerance. The examiner noted that the Veteran had glucose checks of 125 and 129 in 2006, and that a glucose check in February 2008 was 120. He said the glucose level on examination today was 124. The examiner stated that the Veteran's one blood glucose level of 129 "legally" met the definition of diabetes mellitus type 2 in 2006, but that the Veteran had no subsequent treatment, and the condition had not progressed. He diagnosed impaired fasting glucose. He indicated that there were no symptoms or complications of diabetes or of impaired fasting glucose on the current examination. He said that medically he did not diagnose diabetes at this point. The Board finds that the weight of the evidence is against the claim of service connection for diabetes mellitus. Though the Veteran served in the Republic of Vietnam during the Vietnam era and is therefore presumed to have been exposed to Agent Orange during service, and while type II diabetes mellitus is listed among the disorders for which a presumption based on herbicide exposure is warranted under section 3.309(e), there is no evidence of a current diagnosis of this disorder. The Board notes that a service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Although the Veteran has contended that he has diabetes mellitus, service connection for diabetes mellitus is not warranted in the absence of proof of a current disability. In summary, the record fails to show competent and probative evidence of diabetes mellitus in service or currently, and the preponderance of the evidence is against a finding that the claimed condition is due to or aggravated by service. Therefore, the Board finds that the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. Hearing Loss and Tinnitus The Veteran contends that he has bilateral hearing loss and tinnitus due to acoustic trauma during service in Vietnam. For the purposes of applying the laws administered by the VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the thresholds for at least three of these 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. The requirements for service connection for hearing loss as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant's period of active military service in order for service connection to be granted. 38 C.F.R. § 3.385 does not prevent a claimant from establishing service connection on the basis of post-service evidence of hearing loss related to service when there were no audiometric scores reported at separation from service. Ledford v. Derwinski, 3 Vet App. 87, 89 (1992). The regulation does not necessarily preclude service connection for hearing loss that first met the regulation's requirements after service. Thus, a claimant who seeks to establish service connection for a current hearing disability must show, as is required in a claim for service connection for any disability, that a current disability is the result of an injury or disease incurred in service, the determination of which depends on a review of all the evidence of record including that pertinent to service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993); 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60. Service treatment records reflect that on pre-induction medical examination in June 1966, audiometric testing revealed right ear decibel thresholds of 25, 20, 20, 20, and 15 and left ear decibel thresholds of 25, 20, 20, 20, and 15, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz (converted to current standards). Audiometric testing on separation examination in July 1968 revealed right ear decibel thresholds of 10, 5, 5, and 15, and left ear decibel thresholds of 10, 5, 5, and 10, at the respective frequencies of 500, 1000, 2000, and 4000 hertz. In a July 1968 report of medical history, the Veteran reported a history of ear, nose or throat trouble, and denied hearing loss. The reviewing examiner noted that the Veteran had acoustic trauma and otalgia in Vietnam with no symptoms for the past 5 months and no sequelae. The Veteran's service treatment records including his pre- induction physical examination and his separation physical examination contain no evidence of complaints, treatment, or diagnosis for bilateral hearing loss or tinnitus. Moreover, the service treatment records demonstrate the presence of essentially normal hearing bilaterally. Service personnel records reflect that the Veteran served in the Army in an artillery battalion in Vietnam, first as a cannoneer, then as a chaplain's assistant, from April 1967 to March 1968. In light of the Veteran's military occupational specialties and the notation of acoustic trauma in his service treatment records, the Board finds that in-service acoustic trauma is demonstrated. In his initial claim, the Veteran asserted that he incurred tinnitus, hearing loss, head pain, dizziness, and disorientation in May 1967, and that he was treated for these conditions by a private physician from 1990 to November 2006. Despite a request by the RO for an authorization to release medical records, so that the RO could attempt to obtain these records, the Veteran has not submitted such an authorization, nor has he submitted any pertinent private medical records regarding hearing loss and tinnitus. A review of the file reveals that there is no medical evidence of hearing loss or tinnitus until 2008. At a September 2008 VA audiological examination, the Veteran complained of hearing loss and tinnitus. He reported combat noise exposure during service in Vietnam. He said he incurred a concussion and otalgia during service. He said that after service he worked as a teacher and had limited noise exposure. He said he taught wood shop for two years with use of hearing protection. He said that prior to service he worked as a gardener. He said that his recreational noise exposure included use of power tools without hearing protection. He reported constant tinnitus on the left, and said it began in 1983. Audiometric testing revealed right ear decibel thresholds of 20, 20, 30, 65, and 80, and left ear decibel thresholds of 20, 20, 65, 60 and 60, at the respective frequencies of 500, 1000, 2000, 3000, and 4000 hertz. The examiner diagnosed bilateral sensorineural hearing loss. The examiner noted that the Veteran reported a history of noise exposure in military service, and reported that his hearing loss began in service. The examiner indicated that a review of his service treatment records showed normal hearing on separation examination, and no evidence of a threshold shift, and that the Veteran had also reported recreational noise exposure. She opined that therefore the Veteran's hearing loss was not caused by or the result of military noise exposure. She stated that the Veteran reported that his tinnitus started in 1983, 15 years after service, and also brought personal medical records with an onset of vertigo in the 1980s, pain in the left ear and history of asymmetrical hearing loss. The examiner opined that because the Veteran's tinnitus had an onset 15 years after service, it was less likely than not caused by military service. Based on the recent audiometric findings, the Board finds that the Veteran has a current bilateral hearing loss disability as defined by VA (see 38 C.F.R. § 3.385). The issue remains whether service connection is warranted for bilateral hearing loss. Evidence in support of the claims includes statements by the Veteran to the effect that he incurred hearing loss in service and the fact that he was exposed to acoustic trauma (explosions at close range and working as a gunner) in service. Evidence weighing against the claim includes the fact that the service treatment records are negative for diagnosis of hearing loss or tinnitus. Moreover, there is no medical evidence of bilateral hearing loss or tinnitus for many years after separation from service. The first documented hearing loss was in 2008, approximately 40 years after service. The examiner did not causally link the current hearing loss or tinnitus to service or to events therein. Moreover, the 1968 audiology examination documents essentially normal hearing. Additionally, the VA examiner opined that the current bilateral hearing loss and tinnitus were not linked to service. There is no medical evidence linking the Veteran's current bilateral hearing loss and tinnitus with service. The Board notes that the Veteran's exposure to in-service acoustic trauma is conceded. However, none of the evidence on file specifically links the Veteran's bilateral hearing loss with service. The Veteran has asserted that he incurred bilateral hearing loss and tinnitus during his period of active service. The Board notes that under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau, 492 F.3d at 1372. The Courts have in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan, 451 F.3d at 1336. However, here, the Veteran has made conflicting statements as to when his tinnitus began, stating both that it began in service and also that it began in the 1980s. Thus the Board finds that continuity of tinnitus symptoms since service is not shown. With respect to hearing loss, the Board finds that the evidence of the passage of so many post-service years before documentation of hearing loss along with normal findings on the 1968 audiology examination contradicts his assertions that he has had hearing loss since separation in 1968, and, therefore, the statements that he has had a continuity of symptomatology since service are not credible and carry no probative weight. See Buchanan, supra; Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). The VA examiner is competent to render such an opinion. Moreover, she reviewed the file, including prior relevant examinations and provided reasons for her conclusions. The examination was adequate and the examiner's conclusion carries much probative weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As to a causal relationship between service and his current hearing loss and tinnitus, the Veteran is not qualified to offer an opinion because the question of etiology of his hearing loss and tinnitus is not lay-observable and requires medical expertise. The September 2008 VA examiner concluded that it was not likely that the Veteran's hearing loss and tinnitus were due to noise exposure in service. There is no competent evidence of record linking the current hearing loss and tinnitus, first shown decades after active duty, to any incident of service. In summary, the record fails to show competent and probative evidence of bilateral hearing loss or tinnitus in service or for many years thereafter, and the preponderance of the evidence is against a finding that the conditions are due to or aggravated by service. Therefore, the Board finds that the preponderance of the evidence is against the claims, and the appeal must therefore be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Service connection for diabetes mellitus, including as due to herbicide exposure, is denied. Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs