Citation Nr: 1803362 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 16-21 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for diabetes mellitus type 2. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus type 2. 5. Entitlement to service connection for right wrist disorder claimed as hand injury. ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran had active duty for training from March 1961 to September 1961 and active duty from December 1961 to December 1964 with overseas service in Europe. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's bilateral hearing loss did not have its onset in service, did not manifest to a compensable degree within one year of separation, and is not otherwise related to service. 2. The Veteran's tinnitus did not have its onset in service, did not manifest to a compensable degree within one year of separation, and is not otherwise related to service. 3. The Veteran's diabetes mellitus type 2 did not have its onset in service, did not manifest to a compensable degree within one year of separation, and is not otherwise related to service. 4. The Veteran's erectile dysfunction did not have its onset in service, and is not otherwise related to service; service connection is not in effect for diabetes mellitus type 2. 5. The Veteran does not have a current right wrist disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2017). 3. The criteria for service connection for diabetes mellitus type 2 have not been met. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 5. The criteria for service connection for right wrist disorder claimed as hand injury have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); See also 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). All relevant, obtainable evidence has been associated with the claims file to fulfill VA's duty to assist. 38 U.S.C. § 5103A. The Board finds that the VCAA requirements to notify and assist have been satisfied in this appeal. Legal criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Moreover, sensorineural hearing loss, tinnitus, and diabetes mellitus may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). A disorder may be service-connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Additionally, the threshold for normal hearing is from 0 to 20 dB; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Bilateral Hearing Loss and Tinnitus The Veteran's military occupational specialty was combat engineer. Thus, in-service military noise exposure is substantiated. The Veteran underwent the following examinations: an October 1960 enlistment examination, a September 1961 separation examination, and a December 1961 enlistment examination. None of these examinations contained audiometric testing, and none indicated that the Veteran had any bilateral hearing loss. The Veteran did not report any problems with his hearing on his October 1964 report of medical history, and his October 1964 separation examination contained an audiogram that did not reflect hearing loss for VA purposes. The Veteran underwent VA examinations in August and December 2015. During the August 2015 VA examination, he was diagnosed with bilateral sensorineural hearing loss. During the examination, the Veteran reported that he was exposed to high levels of noise during service, and the onset of hearing loss and tinnitus was "longstanding." The examiner determined that the Veteran's hearing loss was less likely than not related to service because his separation audiological examination was normal. The examiner also stated that she could not offer an opinion as to the etiology of the Veteran's tinnitus without resorting to speculation, and noted that the Veteran was not competent to provide an opinion regarding the etiology of his tinnitus. Likewise, the December 2015 examiner determined that bilateral hearing loss was less likely than not related to service, and added that the Institute of Medicine's landmark studies on military noise exposure found insufficient evidence to determine whether hearing loss developed long after the cessation of noise exposure, indicating it was "unlikely that such delayed effects occur." The December 2015 examiner further opined that tinnitus was less likely than not etiologically related to service, as there was no evidence of an in-service noise injury. The Board finds that the VA examiners' opinions are adequate and highly probative to the question at hand. The examiners possessed the necessary education, training, and expertise to provide the requested opinions. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiners provided detailed rationales for their opinions, and their opinions were based on examinations and interviews of the Veteran, as well as on a review of the service treatment records, the post-service treatment records, and the lay statements of the Veteran. The opinions considered an accurate history, were definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiners could not link the Veteran's current hearing loss and tinnitus to service. Indeed, while the Veteran was exposed to military noise, the examiners found that the Veteran did not sustain acoustic trauma that resulted in a chronic disability manifested by hearing loss and tinnitus. The Board has also considered the Veteran's assertions that his hearing loss and tinnitus are related to noise exposure in service. The Board acknowledges that it is within the realm of common medical knowledge that exposure to loud noises may cause hearing loss and tinnitus. Therefore, the Veteran's lay opinion could possibly be sufficient to serve as the required nexus for his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (explaining that lay evidence may be sufficient to establish the nexus element). However, determining the precise etiology of the Veteran's hearing loss and tinnitus is not a simple question, as there are conceivably multiple potential etiologies of the Veteran's sensorineural hearing loss and tinnitus where there is no medical evidence or specific lay evidence of the onset of hearing loss and tinnitus in service; the Veteran only reported the onset of hearing loss and tinnitus was "longstanding." Ascertaining the etiology of hearing loss involves considering multiple factors and knowledge of how those factors interact with the mechanics of human hearing. In this case, the facts are complex enough that the Veteran's intuition about the cause of his hearing loss and tinnitus is not sufficient to place the nexus question in equipoise. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring) ("The question of whether a particular medical issue is beyond the competence of a layperson-including both claimants and Board members-must be determined on a case-by-case basis."). As previously noted, sensorineural hearing loss and tinnitus may be presumed to have been incurred in service if manifested to a compensable degree within one year after discharge from service. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). In addition, a disorder may be service-connected if the evidence of record shows that the Veteran currently has a disorder that was chronic in service, or if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b). Here, however, the medical evidence does not show, and the Veteran does not specifically assert, that his bilateral hearing loss and tinnitus had their onset in service or manifested to a compensable degree within one year of separation from service. Therefore, presumptive service connection or service connection on a theory of continuity of symptomatology is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Diabetes Mellitus Type 2, Erectile Dysfunction, and Right Wrist Service treatment records show that the Veteran reported that he fell on his right wrist in February 1963 and he now had residual pain. X-rays of the right wrist were normal. He was diagnosed with right wrist sprain and he was treated with a wrap. A May 1963 record noted that the Veteran had a right wrist ganglion. The separation report of medical examination and report of medical history were negative for any findings or complaints of a right wrist disorder. The service treatment records are otherwise negative for any complaints or findings of diabetes mellitus and erectile dysfunction. Post service, VA outpatient treatment records dated from 2014 to 2015 are negative for any complaints or findings of a right wrist disorder. The medical evidence of record does show current diagnoses of diabetes mellitus and erectile dysfunction. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. While the Veteran's service treatment records do show an in-service injury to the Veteran's right wrist in service, there is no medical or lay evidence of a current disability. While the Veteran is currently diagnosed with diabetes mellitus, he has not specifically indicated how this disability is related to service, and the evidence of record does not otherwise link this disability to his military service. Also, as service connection is not in effect for diabetes mellitus, erectile dysfunction cannot be established as secondary to service connected disability. For these reasons, service connection is not warranted for a right wrist disorder, diabetes mellitus, and erectile dysfunction. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for diabetes mellitus type 2 is denied. Service connection for erectile dysfunction, to include as secondary to diabetes mellitus type 2 is denied. Service connection for right wrist disorder claimed as hand injury is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs