Citation Nr: 1801920 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-01 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as a pancreas condition. 2. Entitlement to service connection for a sinus disability. 3. Entitlement to service connection for right ear hearing loss disability. ATTORNEY FOR THE BOARD Sean Raymond, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1956 to December 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. RO jurisdiction has since transferred to Winston-Salem, North Carolina. In November 2015, the Board remanded the present claims on appeal for further development. Other claims previously within the same appeal stream were either then decided by the Board or subsequently granted in full by the RO for reasons and bases stated within corresponding decisions of record. In a January 2012 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge; however, in June and July 2015 he withdrew his hearing request. See 38 C.F.R. § 20.704(d). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Diabetes mellitus was not incurred in, manifested within one year of, or otherwise related to service. 2. A sinus disability was not incurred in or otherwise related to service. 3. Right ear hearing loss disability was not incurred in, manifested within one year of, or otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for a sinus disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for right ear hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process The Veteran has not raised any issues with the duty to notify or duty to assist since return of this case to the Board. 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 duty to assist argument). The Board has reviewed all evidence in the claims file. Although the Board must provide adequate reasons and bases for a decision, the Board need not discuss all evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on what relevant evidence shows, or fails to show, with respect to the Veteran's claims on appeal. Consequently, any evidence not discussed within this decision is either irrelevant or unfavorable to the Veteran's claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). II. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: '(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 or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, including hearing loss as an organic disease of the nervous system, and diabetes mellitus, service connection may be granted on a presumptive basis if the disease manifested to a compensable degree within one year following service discharge. 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). III. Analysis a. Diabetes Mellitus The Board does not dispute that the Veteran has diabetes mellitus. Several post-service treatment records reflect diagnosis and treatment of diabetes as early as 2006, and a March 2017 VA examination confirms a diagnosis of diabetes mellitus type II. Nevertheless, presence of a current disability constitutes only one element of a service connection claim. The Board notes that portions of the Veteran's service treatment records (STRs) are illegible due to apparent fire damage; however, visible portions of in-service comprehensive medical evaluations do not reflect any diagnosis or treatment for diabetes or pancreatic disease, including sections concerning the endocrine system that reflect no abnormalities. Moreover, the Veteran reported the onset of his diabetes mellitus as approximately 11 years earlier as of the date of his March 2017 VA examination. Thus, the Board turns to whether the Veteran's diabetes mellitus in any way relates to his service. The Veteran contends that mercury dental fillings he received in service caused his diabetes mellitus. Pursuant to November 2015 Board remand directives, the RO arranged the March 2017 VA examination to ascertain the etiology of the Veteran's diabetes mellitus, as well as address whether mercury fillings may have caused diabetes mellitus. The March 2017 examiner opined it less likely than not that active service caused the Veteran's diabetes mellitus. The examiner noted a 2007 onset of the Veteran's symptoms, which failed to support a plausible nexus to any active duty service event more than 40 years prior. The examiner further provided empirical medical evidence from the Food and Drug Administration (FDA), to include the FDA's finding of no causal link between mercury used in dental amalgam fillings and adverse health effects. Medical evidence thereby fails to establish a nexus between the Veteran's diabetes mellitus and his active service to allow direct service connection. Diabetes mellitus is a listed chronic disease under 38 C.F.R. § 3.309. As stated previously, STRs do not contain any diagnosis of diabetes mellitus, and the record lacks evidence of any such manifestation within one year of service, or continuity of symptomatology since service. Consequently, service connection is unavailable on a presumptive basis for a chronic disease. In consideration of the above, the Board finds the competent medical evidence outweighs the Veteran's lay contentions as to whether his diabetes mellitus is due to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, no feasible basis for service connection remains for this issue. As the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt is inapplicable, and the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). b. Sinus Disability The Board does not dispute that the Veteran has a sinus disability. The March 2017 VA examiner diagnosed "nasal congestion due to rhinitis medicamentosa." The Veteran contends that his sinus disability is related to mercury dental fillings he received in service. STRs are silent as to diagnosis or treatment of any sinus injury or disease. Visible portions of the Veteran's STRs note the Veteran's sinuses as normal. VA and private treatment records contain no evidence as to whether the Veteran's sinus disability is due to his service. The March 2017 VA examiner found no medical or scientific evidence to support a relation between sinusitis or rhinitis and mercury dental fillings. The examiner further noted that the Veteran attested to self-treatment of his nasal congestion for many years with an over-the-counter nasal decongestant. The examiner noted that prolonged use of nasal decongestants have pharmacologically known side effects of chemically induced rhinitis defined as "rhinitis medicamentosa." The examiner opined this to be the likely cause of any disease currently affecting the Veteran's sinuses. Coupled with a finding of normal sinuses within the Veteran's STRs, the Board cannot conclude that such a disease was diagnosed or began in service. In consideration of the above, the Board finds the competent medical evidence outweighs the Veteran's lay contentions as to whether his sinus disability is due to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, no feasible basis for service connection remains for this issue. As the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt is inapplicable, and the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). c. Right Ear Hearing Loss Disability Impaired hearing constitutes a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or for Maryland CNC speech recognition scores less than 94 percent. 38 C.F.R. § 3.385 (2017). STRs do not include auditory threshold results suitable for VA compensation purposes. Rather, STRs reflect "whispered voice test" results. While the results show scores of "15/15" for all test entries available, such results are inadequate for VA compensation entitlement determinations, as they do not offer information comparable to the auditory threshold parameters stated above. The Veteran's claim for right ear hearing loss originated as a claim for bilateral hearing loss, and came before the Board in November 2015. The Board found a June 2014 VA audiological examination report contained an inconsistent etiological opinion and remanded the issue for further development. In April 2017, the RO subsequently granted service connection for left ear hearing loss based on a March 2017 VA examination report wherein the examiner opined that the Veteran's left ear hearing loss was due to service, but continued to deny service connection for right ear hearing loss disability based on the examiner's opinion that right ear hearing loss disability was not due to service. The Board concedes in-service exposure based upon the Veteran's military occupational specialty as an infantryman. Additionally, the March 2017 VA examination report reflects the Veteran has current right ear hearing loss disability for VA purposes. However, the March 2017 examiner opined it less likely than not that the Veteran's right ear hearing loss disability is due to service. The examiner noted it impossible to determine whether a significant threshold shift occurred in service based on the sole availability of whispered voice test results from STRs. The examiner noted a March 2008 VA examination showed right ear hearing within normal limits across all VA-contemplated auditory thresholds along with a 100 percent speech discrimination score. Conversely, the March 2008 VA examination showed left ear hearing loss in the 3000-4000 Hz range with a slightly lesser speech discrimination score of 98 percent. The March 2017 VA examiner additionally noted the Veteran's reported onset of hearing loss many years after military service ended. The Board finds the evidence preponderates against a finding that the Veteran's right ear hearing loss disability is due to service-regardless of any previous grant of service connection for left ear hearing loss. Objective medical evidence only shows onset of right ear hearing loss disability more than 40 years after service. In-service hearing testing, while nondispositive, similarly offers no support to the claim. Remaining evidence of record further fails to demonstrate the Veteran suffered from right ear hearing loss disability of a compensable degree within one year of service, or any continuity of symptomatology since service, and thus, service connection is unavailable on a presumptive basis for chronic disease. In sum, the Veteran has not proffered, nor has VA received, competent medical evidence to outweigh the March 2017 VA audio examiner's negative etiological opinion. In consideration of the above, the Board finds the competent medical evidence outweighs the Veteran's lay contentions as to whether his right ear hearing loss disability is due to service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, no feasible basis for service connection remains for this issue. As the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt is inapplicable, and the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for diabetes mellitus, claimed as a pancreas condition, is denied. Entitlement to service connection for a sinus disability is denied. Entitlement to service connection for right ear hearing loss disability is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs