Citation Nr: 1751993	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  10-32 165	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUES

1.  Entitlement to an initial compensable disability rating for a bilateral hearing loss disability.

2.  Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder.

3.  Entitlement to service connection for strokes.

4.  Entitlement to service connection for dementia.

5.  Entitlement to service connection for diabetes mellitus type II (herein diabetes), to include as due to herbicide exposure and/or as secondary to an acquired psychiatric disorder.

6.  Entitlement to service connection for hypertension, to include as secondary to diabetes.

7.  Entitlement to service connection for a heart condition, to include as secondary to diabetes.

8.  Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes.

9.  Entitlement to service connection for peripheral neuropathy of the upper extremities, to include as secondary to diabetes.

10.  Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to diabetes.

11.  Entitlement to service connection for diabetic retinopathy.

12.  Entitlement to service connection for a skin or nail disability of the feet, to include as secondary to diabetes.

13.  Entitlement to service connection for headaches, to include as secondary to an acquired psychiatric disorder.


REPRESENTATION

Veteran represented by:	J. Michael Woods, Attorney at Law


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

S. Hoopengardner, Associate Counsel
INTRODUCTION

The Veteran served on active duty from August 1971 to August 1975.

These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions by Department of Veterans Affairs (VA) Regional Offices (ROs).

The Veteran testified at a September 2012 Board videoconference hearing before the undersigned Veterans Law Judge as to some of the issues on appeal.  A transcript of the hearing is of record.

The Board remanded some of the issues on appeal in April 2014.

Multiple issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The audiometric examination results reflecting the most severe hearing loss corresponded to a level I designation for the "better" ear and a level I designation for the "poorer" ear.

2.  Strokes and dementia were not manifest during active service or within one year of active service and are not related to the Veteran's active service.


CONCLUSIONS OF LAW

1.  The criteria for an initial compensable disability rating for a bilateral hearing loss disability have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).

2.  Strokes and dementia were not incurred in or aggravated by active service and may not be presumed to have been incurred therein.  38 U.S.C.A. § 1110, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initially, as applicable to the issues being decided, neither the Veteran nor his representative raised issues with respect to VA's duty to notify or assist or presented other procedural arguments.  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).

I.  Hearing Loss

Initially, subsequent to the Statement of the Case issued in April 2016, additional documents were associated with the Veteran's claims file, specifically in the form of VA treatment records obtained by VA in August 2017, without a waiver of review by the AOJ.  While the Veteran filed his substantive appeal in May 2016 and evidence submitted by the Veteran is therefore subject to initial review by the Board, the additional documents were obtained by VA and therefore waiver of consideration of such by the AOJ is not assumed.  See 38 U.S.C.A. § 7105(e)(1) (West 2014).  The additional VA treatment records listed an active problem of bilateral hearing loss (which is duplicative of earlier evidence) and one note noted "hearing intact," which does not provide evidence for an increased disability rating.  As such, the additional documents do not relate to or have a bearing on this claim and are therefore not pertinent and the Board can accordingly proceed with a decision on this claim.  See 38 C.F.R. § 20.1304(c) (2017). 

An August 2015 rating decision granted entitlement to service connection for a bilateral hearing loss disability and assigned a noncompensable (0 percent) disability rating under Diagnostic Code 6100, effective December 7, 2007.

The "assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations."  See Lendenmann v. Principi, 3 Vet. App. 345 (1992); see also Martinak v. Nicholson, 21 Vet. App. 447 (2007) (indicating that the criteria for evaluating the degree of impairment resulting from hearing loss under the rating schedule, unlike extraschedular consideration under 38 C.F.R. § 3.321(b), rely exclusively on objective test results).

To evaluate the degree of disability from hearing impairment, the rating schedule assigns Roman numeral designations, from I through XI.  Generally, the Roman numerals are assigned based on the puretone threshold average and the percent of speech discrimination.  The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85(d) (2017).  On Table VI ("Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination"), the puretone threshold average is located along a horizontal axis and the percent of speech discrimination is located along a vertical axis.  See 38 C.F.R. § 4.85, Table VI (2017).  For each ear, the intersection of the puretone threshold average and the percent of speech discrimination on this table results in a Roman numeral designation.  The Roman numerals are then matched based on the "better" ear and the "poorer" ear on Table VII ("Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100)") to produce a disability rating percentage under Diagnostic Code 6100.

The Veteran submitted a claim for entitlement to service connection for a bilateral hearing loss disability in December 2007.

The Veteran was afforded an audio VA examination in February 2009.  It was noted that the "Veteran has greatest difficulty understanding normal conversational level speech when speaking with his wife."  Audiological testing was conducted and puretone thresholds, in decibels, were:


HERTZ

1000
2000
3000
4000
RIGHT
5
10
55
60
LEFT
10
25
80
80
The puretone threshold average in the right ear was 33 and the puretone threshold average in the left ear was 49.  Speech discrimination scores were 96 percent in the right ear and 94 percent in the left ear.  These results when applied to Table VI correspond to a level I designation for both the right and left ears.  Under Table VII, a level I designation for the "better" (either) ear and a level I designation for the "poorer" (either) ear warrants the assignment of a 0 percent disability rating.  See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).

At the September 2012 Board hearing, the Veteran testified that "[m]y wife talks to me and I don't hear" and his spouse stated that "you have to repeat sometimes to him.  You either have to talk louder or repeat two or three times."

The Veteran was also afforded an audio VA examination in May 2015.  The examination report noted that the Veteran's hearing loss impacted ordinary conditions of daily life, including the ability to work.  Specifically, it was noted that "[t]he Veteran has 'difficulty understanding when he is spoken to.  He has to have people repeat themselves.'"  Audiological testing was conducted and puretone thresholds, in decibels, were:


HERTZ

1000
2000
3000
4000
RIGHT
25
20
55
65
LEFT
15
40
75
75

The puretone threshold average in the right ear was 41 and the puretone threshold average in the left ear was 51.  Speech discrimination scores were 94 percent in the right and left ear.  These results when applied to Table VI correspond to a level I designation for both the right and left ears.  Under Table VII, a level I designation for the "better" (either) ear and a level I designation for the "poorer" (either) ear warrants the assignment of a 0 percent disability rating.  See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).

Upon review of the evidence of record, the Board finds that entitlement to an initial compensable disability rating for a bilateral hearing loss disability is not warranted.  The February 2009 and May 2015 VA examination reports contained the only audiometric testing valid for VA rating purposes during the appeal period.  See 38 C.F.R. § 4.85(a) (2017).  The Board therefore finds that the audiometric examination results reflecting the most severe hearing loss corresponded to a level I designation for the "better" ear and a level I designation for the "poorer" ear, as reflected on the referenced VA examination reports.  As such, the Board concludes that the criteria for an initial compensable disability rating for a bilateral hearing loss disability have not been met and to this extent the Veteran's claim is therefore denied.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).

In reaching this conclusion, the Board notes that it has considered the Veteran's lay statements and that the Veteran is competent to report difficulty hearing.  The findings noted on the VA audiological examination reports are consistent with the assertion that the Veteran has difficulty hearing.  As noted above, however, the "assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations."  See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

II.  Strokes and Dementia

Initially, subsequent to the Statement of the Case issued in April 2016, additional documents were associated with the Veteran's claims file, specifically in the form of VA treatment records obtained by VA in August 2017, without a waiver of review by the AOJ.  While the Veteran filed his substantive appeal in May 2016 and evidence submitted by the Veteran is therefore subject to initial review by the Board, the additional documents were obtained by VA and therefore waiver of consideration of such by the AOJ is not assumed.  See 38 U.S.C.A. § 7105(e)(1) (West 2014).  In any event, as will be outlined further below, these claims are being denied primarily on the basis that there was no in-service event and that strokes or dementia did not manifest during active service or within one year of active service.  The additional VA treatment records do not relate to these key issues.  As such, the additional documents do not relate to or have a bearing on these claims and are therefore not pertinent and the Board can accordingly proceed with a decision on these claims.  See 38 C.F.R. § 20.1304(c) (2017). 

The Veteran filed a claim for entitlement to service connection for strokes and dementia in September 2014.

Generally, in order to establish direct service connection, three elements must be established: a current disability, an in-service event and a nexus between the current disability and the in-service event.

As to a current disability, evidence of record, to include various VA treatment records, referenced a diagnosis of dementia.  Evidence of record also referenced the Veteran as having cerebrovascular disease, which the Board will accept as a current disability of the claimed strokes.

The evidence of record, however, did not indicate an in-service event that the Veteran's strokes or dementia could be related to.  In this regard, the Veteran and his representative have not specifically identified any in-service event and no other in-service event is reasonably raised by the evidence of record, to include the Veteran's service treatment records (STRs).  In this regard, the Veteran's STRs did not mention strokes or dementia and the July 1975 separation examination report noted upon clinical evaluation that the vascular system and neurologic were normal, noted no defects or diagnoses and noted that the Veteran was qualified for discharge.  In addition, a statement signed by the Veteran stated that "I hereby certify that I have informed the medical officer of all my defects, illnesses and injuries known to me."  Overall, as the evidence of record did not reasonably raise, nor has the Veteran or his representative identified, an in-service event that the Veteran's strokes or dementia could be related to, entitlement to service connection on a direct basis is not warranted.

The Board notes that the Veteran's representative submitted a statement in May 2017.  This statement stated that "[t]he Veteran should be awarded direct service connection for dementia, strokes...and in support of this proposition, I respectfully direct you to the following" and cited various evidence.  One citation was made to a January 29, 1974 STR that noted that the Veteran had chest pain for 12 hours and that he previously had an episode in November 1973 that lasted three days.  Upon review of the referenced STR, an assessment was noted of pneumonia and a February 1, 1974 STR noted a follow up for pneumonia and an assessment of "[r]esolving."  This in-service incident of chest pain that was assessed as pneumonia that resolved within a few days does not relate to the Veteran's current strokes or dementia, which involve different body systems than those impacted by pneumonia.  The competent evidence of record does not otherwise indicate pneumonia may be related to strokes or dementia.

In addition, the Veteran's representative also cited to two buddy statements of record from H.Z. and C.W.  These two statements described, essentially, the lay observations of the Veteran before and after service and the changes that were observed.  The statements appeared to report mental health symptoms observed in the Veteran following service.  There is no indication that either H.Z. or C.W. are competent to report that the Veteran's strokes or dementia are related to his active service, nor did the statements appear to specifically state such.

Further, the Veteran's representative referenced the opinion provided by Dr. H.H. that was discussed above in regards to the acquired psychiatric disability claim.  This opinion stated in part that "[i]t is the belief of this examiner...that [the Veteran] suffers from unspecified depressive disorder more likely than [not, sic] that began in military service."  This was the only portion of the provided opinion that addressed etiology of a disability or a potential relationship between a current disability and the Veteran's active service.  Upon review, the provided opinion addressed whether the Veteran's depressive disorder was related to his active service and not whether the Veteran's strokes or dementia were.  The Board accordingly affords this opinion little probative value with respect to the issue of whether the Veteran's strokes or dementia are related to his active service.  No other competent evidence of record associated the Veteran's strokes or dementia with his active service.

In sum, as the evidence of record did not indicate an in-service event that the Veteran's strokes or dementia could be related to (and accordingly a nexus to active service is also lacking), entitlement to service connection on a direct basis is not warranted. 

In addition, if a chronic disease becomes manifest to a degree of 10 percent within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of such disease during service.  See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017).  This presumption applies only to specific listed diseases, which includes "[o]ther organic diseases of the nervous system" and which the Board will consider to include strokes and dementia.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. § 3.309(a) (2017).  In this case, the evidence of record did not indicate that the Veteran's strokes or dementia manifested during active service or within one year of active service.  Moreover, it does not appear that the Veteran or his representative have contended otherwise.  As such, entitlement to service connection is not warranted based on the presumption related to chronic diseases.

In review, the Board finds that strokes and dementia were not manifest during active service or within one year of active service and are not related to the Veteran's active service.  The Board accordingly concludes that strokes and dementia were not incurred in or aggravated by active service and may not be presumed to have been incurred therein and to this extent the Veteran's claim is therefore denied.  38 U.S.C.A. § 1110, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).



ORDER

Entitlement to an initial compensable disability rating for a bilateral hearing loss disability is denied.

Entitlement to service connection for strokes is denied.

Entitlement to service connection for dementia is denied.


REMAND

Acquired Psychiatric Disability

The Veteran filed a claim in December 2007 for entitlement to service connection for posttraumatic stress disorder (PTSD).  As will be referenced below, evidence of record identified a different acquired psychiatric disability, specifically depressive disorder, and as such the Board has expanded and recharacterized the Veteran's claim as noted on the cover page.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty.  See 38 U.S.C.A. §§ 1110, 1131 (West 2014); see also 38 C.F.R. § 3.303 (2017).  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.  See 38 C.F.R. § 3.303(d) (2017).

In April 2008 and November 2008 statements and during the September 2012 Board hearing, the Veteran reported combat experiences in Vietnam.  However, service records and additional development failed to indicate that the Veteran had any service in Vietnam or participated in combat action in any theater of operations. 

In an August 2017 statement, the Veteran's representative listed the issue on appeal as "[s]ervice connection for depression (claimed as PTSD)."  The representative stated that "[t]he Veteran should be awarded direct service connection for depression claimed as PTSD."  The representative cited in support various evidence, to include a March 2017 private medical opinion that was provided by Dr. H.H., a licensed psychologist.  The provided opinion referenced an interview with the Veteran.  The interview report is silent for any mention of combat or service in Vietnam.  The Veteran's representative referenced that Dr. H.H. reviewed the Veteran's claims file and Dr. H.H. discussed evidence of record indicating such review, to include reference to two episodes of chest pain during service and two buddy statements.  The lay statements reported that the Veteran appeared to have a changed personality and behavior after his service.  Dr. H.H. also cited and discussed medical journal articles, which were submitted with the provided opinion.  Dr. H.H.'s opinion stated that:

Due to the complex overlap of endorsed symptoms it is inconceivable to differentiate specific causation for disability.  Therefore, it should be noted that the disease pattern cannot be attributed to one particular medical condition; rather, all conditions may indeed contribute to the overall decompensation and disability of this Veteran.  It is the belief of this examiner, based on interview and the C-File that [the Veteran] suffers from unspecified depressive disorder more likely than [not, sic] that began in military service, continues uninterrupted to the present and has been exacerbated by his neurocognitive disorder secondary to syphilis.

The psychologist cited to three medical articles as representative of a body of literature addressing mental health symptoms within active duty servicemen.  The Board reviewed the articles.  In one article, the authors found that depressed men with a history of military service are less likely to be satisfied with their quality of life whereas military men without depression are more satisfied with their quality of life.  In another paper, the authors examined men with combat service and the effects of guilt and shame on the severity of their depression and posttraumatic stress.  Finally, a third paper addressed the labor market experiences of Vietnam-era veterans.  

The Board finds that this report and its rationale warrant low probative weight and are not sufficient to decide the claim.  The psychologist did not explain why two episodes of chest pain that were associated with resolved respiratory infections or two lay statements of changed behavior were the cause or in-service onset of the Veteran's psychiatric disorder.   None of the articles are relevant or support the psychologist's conclusion that the Veteran's current disorder began in service.  The psychologist did not address the discharge physical examination that was silent for any mental health manifestations. 

The Veteran has been diagnosed with an acquired psychiatric disorder.  There is competent and credible evidence of episodes of chest pain during service and changed behavior after service, and the suggestion of a relationship between the disorder and service that meets the low threshold for a VA examination.  

Diabetes and Alleged Secondary Disabilities

As noted above, entitlement to service connection for an acquired psychiatric disability, to include depressive disorder is under development.  Evidence of record reasonably raised the issue of whether the Veteran's diabetes is secondary (caused or aggravated) to an acquired psychiatric disability.  In this regard, a September 2010 VA neuropsychology consult note stated that the Veteran "is also non-compliant with dietary recommendation for [diabetes] and as a result experiences unstable blood sugar levels" and that "[d]epression is most likely making it more difficult for [the Veteran] to be compliant with dietary recommendations for diabetic management."  As such, remand is required to obtain an opinion that addresses secondary service connection, as outlined further in the remand directives below.

In addition, various disabilities have been alleged to be secondary to diabetes, to include hypertension, a heart condition, erectile dysfunction, peripheral neuropathy of the upper and lower extremities and diabetic retinopathy.  As such, these claims are inextricably intertwined with the diabetes claim being remanded and must also be remanded.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).   

With regard to the issue of a skin or nail disability of the feet, this issue was previously characterized as dermatophytosis.  The Veteran's claim in December 2007 was for "foot fungus."  Evidence of record noted diagnoses of tinea pedis, onychomycosis and ulcers.  As such, the Board has recharacterized the Veteran's claim more broadly.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In addition, the issue of secondary service connection in regards to diabetes was specifically raised at the September 2012 Board hearing.  See September 2012 Board Hearing Transcript, page 17.  As such, this claim is also intertwined with the diabetes claim and must also be remanded.

Headaches

As noted above, entitlement to service connection for an acquired psychiatric disability, to include depressive disorder is under development.  In an August 2017 statement, the Veteran's representative specifically raised the issue of secondary service connection in regards to depressive disorder and submitted a medical article in support of this contention.  In light of the contention and evidence, the Board finds that remand is required for a VA opinion that addresses secondary service connection, as outlined further in the remand directives below.

Outstanding Records

Finally, while on remand, all outstanding VA treatment records must be obtained.

Accordingly, the case is REMANDED for the following action:

1.  Obtain outstanding VA treatment records (the most recent VA treatment records of record are dated in March 2016).

2.  Schedule the Veteran for a VA mental health examination.  Request that the examiner review the electronic claims file and note the review an examination report.  Request that the examiner provide an evaluation of the Veteran's mental health and an opinion whether any disorder at least as likely as not first manifested during service or is caused or aggravated by any aspect of service including episodes of chest pain or indicated by lay observations of changed behavior after service.  The examiner must take note that reports of combat experiences in Vietnam have not been verified.  

3.  Obtain a VA opinion with respect to the Veteran's claim for entitlement to service connection for diabetes.  If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled.  

The medical professional must provide an opinion addressing the following:

a.  Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's diabetes is due to or caused by an acquired psychiatric disability, to include depressive disorder.

b.  Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's diabetes has been aggravated (i.e., increased in severity) by an acquired psychiatric disability, to include depressive disorder.

While review of the entire claims folder is required, the examiner's attention is invited to a September 2010 VA neuropsychology consult note that stated that the Veteran "is also non-compliant with dietary recommendation for [diabetes] and as a result experiences unstable blood sugar levels" and that "[d]epression is most likely making it more difficult for [the Veteran] to be compliant with dietary recommendations for diabetic management."  

For all opinions provided, the examiner must include the underlying reasons for any conclusions reached.

4.  Obtain a VA opinion with respect to the Veteran's claim for entitlement to service connection for headaches.  If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled.  

The medical professional must provide an opinion addressing the following:

a.  Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's headaches are due to or caused by an acquired psychiatric disability, to include depressive disorder.

b.  Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's headaches have been aggravated (i.e., increased in severity) by an acquired psychiatric disability, to include depressive disorder.

While review of the entire claims folder is required, the examiner's attention is invited to a medical article submitted by the Veteran's representative in August 2017 titled "Depression in headaches: chronification."  

For all opinions provided, the examiner must include the underlying reasons for any conclusions reached.

5.  After completing the requested actions, readjudicate the claims in light of all pertinent evidence.  If the benefits sought remain denied, furnish to the Veteran and his representative a Supplemental Statement of the Case.

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).

These claims 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.A. §§ 5109B, 7112 (West 2014).




______________________________________________
J.W. FRANCIS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs