Citation Nr: 1754927 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-06 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for diabetic retinopathy, to include as due to diabetes mellitus, type II. 2. Entitlement to service connection for a kidney disorder, to include as due to diabetes mellitus, type II. 3. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide or toxic chemical exposure. 4. Entitlement to service connection for erectile dysfunction as due to diabetes mellitus, type II. 5. Entitlement to service connection for bilateral hearing loss. 6. Entitlement to service connection for tinnitus, to include as due to bilateral hearing loss. REPRESENTATION Veteran represented by: James M. McElfresh, II, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1965 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In September 2015, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ). The Veteran was notified by letter in November 2015 that the VLJ who conducted the September 2015 hearing is unavailable to participate in this case. In December 2015, the Veteran responded with notification that he did not wish to appear at an additional hearing. In January 2016 the Board remanded the issues on appeal for additional evidentiary development. The case has been returned to the Board for appellate review. The issues of entitlement to service connection for diabetes mellitus, type II, erectile dysfunction, bilateral hearing loss, and tinnitus 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 Veteran has not been shown to have an eye disability associated with his diabetes mellitus at any time since separation from active service in December 1967. 2. The Veteran has not been shown to have a kidney disorder associated with his diabetes mellitus at any time since separation from active service in December 1967. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetic retinopathy as due to diabetes mellitus, type II, have not been met. 38 C.F.R. § 3.310 (2017). 2. The criteria for entitlement to service connection for a kidney disorder as due to diabetes mellitus, type II, have not been met. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that the Veteran is not currently service-connected for diabetes mellitus, type II, and that the issue is being remanded below for additional development. However, the issues of service connection for eye and kidney disabilities are not inextricably intertwined with the outcome of the claim for service connection for diabetes mellitus, type II because as explained below, the Veteran does not have eye and kidney disabilities that are related to diabetes mellitus, type II. Therefore whether diabetes mellitus is service connected is irrelevant. In an April 2012 VA Form 21-526 (Application for Compensation or Pension), the Veteran requested service connection for diabetic retinopathy and a kidney condition, both secondary to diabetes mellitus, type II. He further noted that the kidney condition, as well as diabetes mellitus, type II, began in January 2007. At his September 2015 Board hearing, the Veteran reported he has blurred vision on occasions. He also reported, and his wife confirmed, that he has to get to up to use the restroom three to five times at night. Review of private treatment records document that in March 2015 the Veteran reported an approximate three-day history of floaters and flashing lights in his right eye causing some blurred vision. He explained it was a sudden onset with no loss of visual field or pain in either eye. After evaluation of both eyes, the treating physician noted the following assessments, without any association to diabetes mellitus, type II: vitreous hemorrhage of the right eye, partial posterior vitreous separation of the right eye/posterior vitreous separation of the left eye, localized retinal detachment in the left eye which appears to be old, and white without pressure in the right eye. In May 2015, physical evaluation of his eyes revealed extra ocular movement intact (EOMI) and pupils equal round reactive to light and accommodation (PERRLA) intact bilaterally. Review of private treatment records also document the Veteran had normal kidney function in November 2009. A February 2014 radiology report revealed, in part, a negative renal ultrasound and both kidneys were normal in size, contour, and color. Review of the remaining private treatment records are silent for any indication the Veteran has had a diagnosed eye or kidney disorder at any time since separation from active service in December 1967. Pursuant to the January 2016 Board remand, the Veteran underwent a VA Disability Benefits Questionnaire (DBQ) examination for diabetes mellitus in October 2016. The Veteran reported his eye doctor says he has borderline diabetic changes in his eyes and does not require treatment, and he denied other complications secondary to diabetes. Upon clinical evaluation, the VA examiner noted the Veteran does not have any complications of diabetes mellitus other than the following "secondary metformin medication loose stools that require Veteran to be close to bathroom [and] [o]ccasionally has to wear protective clothing from loss of continence due to diabetes mellitus medication." Review of the evidentiary record shows there is no competent or probative evidence showing that the Veteran has had an eye or kidney disorder during the appeal period. As there is no current disability during the appeal period, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); see Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (symptoms alone, without a finding of an underlying disorder, cannot be service connected). The Board has considered the Veteran's reported history of symptomatology related to his claimed disorders throughout the appeal period. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, his statements do not rise to a level of competency to offer an opinion as to the existence of an eye or kidney disability. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran asserted that he experiences persistent vision and urinary frequency symptoms, a medical professional considered all of the evidence and found that the Veteran's diagnosis of diabetes mellitus, type II, is not currently manifested by complications pertaining to the eyes or kidneys to render current diagnoses. As a result, the probative value of his lay assertions is low and are outweighed by the findings of the VA examiner. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against these claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for diabetic retinopathy to include as due to diabetes mellitus, type II, is denied. Service connection for a kidney disorder to include as due to diabetes mellitus, type II, is denied. REMAND First, an additional VA medical opinion is needed for the issue of entitlement to service connection for diabetes mellitus, type II. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.309(a) (2017). When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Pursuant to the January 2016 Board remand, the Veteran was afforded the VA DBQ examination for diabetes mellitus in October 2016. The examiner was requested to determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's type II diabetes mellitus is related to service, to include exposure to toxic chemicals. Following the clinical evaluation and review of the claims file, the examiner provided an opinion based solely on the absence of evidence and did not explain how it was based on the Veteran's specifically alleged in-service exposure to toxic chemicals (other than herbicides), as noted in the materials the Veteran submitted in September 2015. While the Board remands the issue of service connection for diabetes mellitus, type II, that decision may impact the issue of service connection for erectile dysfunction as due to diabetes mellitus, type II. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Next, an additional VA medical opinion is also needed for the issue of entitlement to service connection for bilateral hearing loss. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.309(a); Barr, 21 Vet. App. at 312. During the course of the appeal, the Veteran has been afforded a VA audiological examination in May 2013 and VA medical opinions in May 2013 and September 2016. The same VA examiner opined that it was less likely than not the Veteran's bilateral hearing loss was caused by or a result of military noise exposure. In so doing, she noted that the Veteran's hearing sensitivity in both ears was within normal limits at the time of entry and separation from service, to include when the examination reports are converted from ASA to ISO standards. The Board notes that the Veteran has a bilateral hearing loss disability for VA purposes, as noted in the May 2013 2013 VA examination report. See 38 C.F.R. § 3.385 (2017). However, the VA medical opinions cited above are inadequate to properly adjudicate the claim at this time. Review of the October 1965 pre-induction examination report demonstrates some degree of impaired hearing in both ears at the 500 Hertz range. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (holding that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss). His bilateral pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 (25) 10 (20) 10 (20) 10 (20) 10 (15) LEFT 10 (25) 10 (20) 10 (20) 10 (20) 10 (15) Review of the December 1965 enlistment examination report demonstrates some degree of impaired hearing in the left ear at the 500 Hertz range. See Hensley, 5 Vet. App. at 157. His bilateral pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 5 (15) -5 (5) unavailable -5 (10) LEFT 15 (30) 5 (15) 0 (10) unavailable 10 (15) Service department audiometric readings prior to January 1, 1967 are converted from American Standards Association (ASA) units to International Standards Organization-American National Standards Institute (ISO-ANSI) units; therefore, in order to facilitate data comparison, the conversion is represented by the figures in parentheses above. Review of the October 1967 separation examination report demonstrates some degree of impaired hearing in the left ear at the 3000 Hertz range using ISO-ANSI units. See Hensley, 5 Vet. App. at 157. His bilateral pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 (15) 5 (15) 5 (15) 0 (10) 0 (15) LEFT 0 (15) 5 (15) 10 (20) 15 (25) 15 (20) Since it is unclear whether service department audiometric readings between January 1, 1967 and December 31, 1970 were recorded in using ASA units or ISO-ANSI units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran's appeal. As a result, in order to facilitate data comparison, the conversion is represented by the figures in parentheses above. The Board notes that the findings of some degree of hearing impairment in both ears at the time of pre-induction in October 1965 and some degree of hearing impairment in the left ear at the time of entry to service in December 1965 and separation from service in October 1967 have not been properly considered in a medical opinion of record. Moreover, the Veteran most recently clarified in an October 2016 statement the nature of his in-service noise exposure. Therefore, an additional VA medical opinion is needed for the issue of service connection for bilateral hearing loss. Lastly, while the Board remands the issue of service connection for bilateral hearing loss, that decision may impact the issue of service connection for tinnitus as due to bilateral hearing loss. As such, these issues are inextricably intertwined. See Harris, 1 Vet. App. at 183. Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who provided the October 2016 examination and medical opinion so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. For purposes of this remand, the examiner must assume that the Veteran had in-service exposure to toxic chemicals (other than herbicides) as noted in the materials the Veteran submitted in September 2015, to include Hyvar XWS, tandex, Urox B, Urox Oil concentrate (liquids) bromacil, Urox 22 (solids), as well as unspecified oil and lead. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type II a. began during active service; b. is related to an incident of service, to include exposure to toxic chemicals; or c. began within one year after discharge from active service. If, and only if, a positive opinion was provided for a nexus between the Veteran's diabetes mellitus, type II, and his active service, the examiner must also opine as to the following: a. whether it is at least as likely as not that the Veteran's erectile dysfunction (as diagnosed in private treatment records) was proximately due to or the result of his diabetes mellitus, type II; or b. whether it is at least as likely as not that erectile dysfunction was aggravated beyond its natural progression by his diabetes mellitus, type II. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinion(s) cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Return the Veteran's claims file to the examiner who provided the May 2013 and September 2016 examination and medical opinions regarding bilateral hearing loss so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. For purposes of this remand, the examiner must assume the Veteran had some degree of hearing impairment in both ears at the time of pre-induction in October 1965 and some degree of hearing impairment in the left ear at the time of entry to service in December 1965 and separation from service in October 1967. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss (a) began during active service; (b) is related to an incident of service, to include noise exposure to artillery as most recently clarified by the Veteran in an October 2016 statement; or (c) began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, the AOJ should review the medical opinions to ensure that the requested information was provided. If any opinion is deficient in any manner, the AOJ must implement corrective procedures. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. 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). _________________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs