Citation Nr: 1328629 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-47 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a hearing loss disability. 2. Entitlement to service connection for diabetes mellitus, Type 1. ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from July 1980 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran testified at a videoconference hearing in April 2011. A transcript is of record. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. FINDINGS OF FACT 1. The Veteran is not currently diagnosed with a bilateral hearing loss disability for VA purposes. 2. Diabetes mellitus, Type I was not shown in service or to a compensable degree within the first post-service year; symptoms of diabetes mellitus were not continuous since service. Diabetes mellitus was not shown until many years after service separation. 3. The currently-diagnosed diabetes mellitus, type I, is not causally or etiologically related to active service, to include any exposure to toxins in the water supply at Camp Lejeune, North Carolina. CONCLUSIONS OF LAW 1. A bilateral hearing loss disability was not incurred or aggravated by service. 38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). 2. Diabetes mellitus, Type 1 was not incurred or aggravated by service. 38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has been diagnosed with diabetes mellitus, and he has claimed that a bilateral hearing loss disability is present. Diabetes mellitus and other organic diseases of the nervous system (which would include bilateral hearing loss) are listed as a "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of 38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)). Service connection may also be established with certain chronic diseases, including diabetes and other organic diseases of the nervous system such as hearing loss, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran alleges that he developed a hearing loss disability as a result of his exposure to loud aircraft noises while serving in the United States Marine Corps. Further, he asserts that he developed Type 1 diabetes mellitus as a result of active service, to include as a result of exposure to toxic drinking water during his assignment to Camp Lejeune, North Carolina. First, the Board notes that the Veteran was assigned to a Marine Air Wing unit during the time of his active service. While his military occupational specialty (MOS) is listed as a baker, he contends that his barracks was close to the flight line, and that he heard loud aircraft noises throughout his time living at that facility. As he was assigned to an air unit, such a living arrangement is plausible, and the Board concedes noise exposure. However, that is not the end of the inquiry. Service connection for impaired hearing is subject to the requirement of 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability only if at least one of the thresholds for the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the thresholds for at least three of the frequencies are greater than 25 decibels; or speech recognition scores using the Maryland CNC Test are less than 94 percent. See also Hensley v. Brown, 5 Vet. App. 155 (1993). In this case, there is simply no evidence to support a current hearing loss. Indeed, the Veteran separated from service in 1984, and has never sought treatment for hearing loss with a private or VA provider. In his testimony before the undersigned, his complaints centered on vague problems with rumbling noises in his right ear, and he confirmed that he has not ever sought any treatment for hearing loss problems. Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. 38 U.S.C.A. § 1131. Thus, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As hearing loss has not been shown, the appeal is denied. Regarding the claim for Type 1 diabetes, the Board notes that the service treatment records do not contain any complaint, diagnosis, of treatment for diabetes. Further, there were no abnormal blood glucose findings or other manifestations which would even suggest the potential presence of diabetic symptoms in service. At the Veteran's service separation examination, he was deemed to have normal endocrine functioning. A May 2004 occupational health assessment recorded the Veteran as having been diagnosed with diabetes in 1995, more than a decade after service. There are no records which contradict this, and additional private medical records do show that he has been counseled on insulin usage and blood glucose control since this time. At his videoconference hearing, he reported some vague complaints of fatigue and of dilated pupils at a time proximate to service discharge; however, he did not assert that these manifestations had been linked to current diabetes by any medical professional. Further, there are no records of treatment for any symptoms of diabetes between 1984 and 1995, and no evidence has been submitted which links the Veteran's diabetes to any incident or event of active service outside of his own lay assertions. The submitted private post-service treatment records simply demonstrate a consistent treatment for type I diabetes since the mid 1990s. As this was well more than a year after his discharge from service in 1984, it weighs against the assertion of a connection to service. The Veteran has asserted that his diabetes had causal origin with his exposure to toxins in the water at Camp Lejeune, North Carolina. The service department records confirm that he was stationed at that facility for a time during his active service, and a letter from the Deputy Commandant of the Marine Corps, dated in October 2008, documents that there were "unregulated chemicals discovered in some of the base drinking water systems in the early 1980s." This letter did not causally link diabetes to exposure to toxins, and only vaguely stated that "the Marine Corps is funding health studies to determine when the drinking water was first impacted, who may have consumed it, and whether or not there may be an association between exposure to the water and certain health conditions." This letter does not establish a link between Type 1 diabetes mellitus and drinking the water at Camp Lejeune, and only suggests that the impact of the faulty drinking water at the base is unknown. Accordingly, it is not evidence supportive of the Veteran's contentions. Moreover, the Camp LeJeune Act lists diseases for which hospital and medical services for veterans is being provided. This list includes primarily cancers and other disorders but does not include diabetes mellitus. The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As no connection has been established between the Veteran's service and Type 1 diabetes, the appeal is denied. In sum, the only evidence supportive of the Veteran's claims consists of the statements of the Veteran himself. The Board acknowledges that the Federal Circuit has suggested that laypersons could establish the required nexus to service in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson."). However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Id. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, regarding the issue of a diagnosis of a hearing loss disability and of an etiology of diabetes, taking the above holdings together, the Board finds that the Veteran's contentions regarding having a current hearing loss disability, and the contentions regarding a purported relationship between the two claimed disabilities and his active service, are not statements about symptomatology or an observable medical condition. Rather, these contentions are statements of medical diagnoses and causation. Indeed, the Veteran asserts that he experiences a hearing loss disability within the meaning of 38 C.F.R. § 3.385, and he also contends that his diabetes mellitus is causally related to exposure to toxins in service. He also attributes fatigue and dilated pupils experienced proximate to service discharge to current diabetes. Such statements clearly fall within the realm of opinions requiring medical expertise. He has not demonstrated any such expertise. Hence, his contentions are not competent medical evidence of the diagnoses or causes of the claimed disabilities. In short, with regard to any statement the Veteran may have made regarding the question of whether he has a current bilateral hearing loss disability or if a hearing loss disability and/or diabetes are related to any event of active duty (or, had onset in the first post-service year), the Board must find that any such statement would be outweighed by what can only be described as a lack of competent evidence substantiating a current diagnosis of hearing loss or of a link between current diabetes to service (or, to a manifestation to a compensable degree within the first post-service year). Accordingly, the Board concludes that the Veteran does not experience a current hearing loss disability for VA purposes, and as such, service connection cannot be granted for that condition. Further, there is no evidence that is both competent and credible which would link current diabetes mellitus to any event of service or demonstrate an onset of diabetes to a compensable degree within the first post-service year. Regarding a continuity of symptoms of the diabetic "chronic condition," while the Veteran reported feeling fatigued and having dilated pupils proximate to his discharge from service, there is no evidence outside of unsubstantiated lay assertions which would serve to link such vague complaints to diabetes, and there is no documentation of any reported symptoms to healthcare providers until at least a decade following discharge. As this is the case, the claims for service connection are not supported by the facts in evidence, and accordingly, must be denied. In reaching the above determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the evidence is against the claims for service connection. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in September 2008, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has submitted private medical records which document his treatment for diabetes, and he has not identified any additional VA or private treatment records which would be pertinent to his claims. Moreover, as noted in the introductory section of this decision, he was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge in April 2011. Next, because the weight of the evidence does not show a bilateral hearing loss disability, and in the case of diabetes, no in-service injury or disease (or even potential symptoms of disease), there is no duty to provide a medical examination. This is due to there being no reasonable possibility that an examination or opinion could aid in substantiating the current claims for service connection. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"); see also Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that a layperson's assertions indicating exposure to gases or chemicals during service are not sufficient evidence alone to establish that such an event actually occurred during service; where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). Regarding diabetes, in the absence of credible evidence of an in-service injury or disease (or symptoms of disease), and in the case of hearing loss, in the absence of evidence suggestive of a current hearing loss disability, referral of this case to obtain an examination and/or an opinion as to the etiology of the claimed disability would in essence place the examining physician in the role of a fact finder and could only result in a speculative opinion or purported opinion of no probative value because there is no in-service injury or disease to which a current disability could be related, and in the case of hearing loss, no evidence of a current disability being present. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Given the absence of a current hearing loss disability, and with respect to diabetes, of an in-service evidence of an injury or disease (or symptoms of disease), a remand for a VA examination would unduly delay resolution. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Significantly, the Veteran has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that have not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a hearing loss disability is denied. Service connection for diabetes mellitus, Type 1 is denied. ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs