Citation Nr: 18150003 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-09 758 DATE: November 14, 2018 ORDER Service connection for sensorineural bilateral hearing loss is granted. REMANDED Service connection for diabetes mellitus, type II (DM) is remanded. Service connection for left upper extremity peripheral neuropathy, secondary to DM, is remanded. Service connection for right upper extremity peripheral neuropathy, secondary to DM is remanded. Service connection for left lower extremity peripheral neuropathy, secondary to DM is remanded. Service connection for right lower extremity peripheral neuropathy, secondary to DM is remanded. FINDING OF FACT The Veteran’s sensorineural bilateral hearing loss is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for sensorineural bilateral hearing loss are met. 38 U.S.C. §§ 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1975 to November 1985. The Board notes that in July 2018 the Veteran filed a substantive appeal for his claim of service connection for an acquired psychological condition. At present, that issue has not been certified to the Board for appellate disposition. When this appeal is certified to the Board for appellate review, the Veteran and his attorney will be notified in writing of the certification and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a). As this has not yet been done, the Board declines to take any further action on this issue. This delay, while regrettable, is necessary to ensure that the Veteran is afforded full due process in the matter. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir.2009)). Additionally, the Board notes that the Veteran’s attorney requested that “the Board…consider the Veteran’s documented diagnosis of tinnitus and grant service connection as a complication of his hearing loss.” However, under VA regulations, tinnitus is a separate disability, and the Veteran has not filed a claim for service connection for tinnitus. Thus, the Board does not have jurisdiction to decide a claim for service connection for tinnitus. Service Connection Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Sensorineural hearing loss is one of the chronic disabilities under 38 C.F.R. § 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). The presumption for chronic diseases relaxes the evidentiary requirements for establishing entitlement to service connection. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that “[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases” and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service (“intercurrent causes”). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338; C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself “establishes the link, or nexus” to service and also “confirm[s] the existence of the chronic disease while in service or [during a] presumptive period.” 1. Service connection for sensorineural bilateral hearing loss For claims for service connection for hearing loss or impairment, VA has specifically defined what is meant by a disability for the purposes of service connection. 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. However, the absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability, i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above, and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As an initial matter, the Veteran has a current diagnosis of sensorineural bilateral hearing loss. The Veteran stated that his hearing loss is due to “acoustic trauma from being around jet noises and operating heavy equipment machinery while working on runways.” The Board finds that excessive military noise exposure is conceded, as the Veteran was a heavy equipment operator in the Air Force. See DD-214. The Veteran, through his attorney, has submitted medical evidence of recent research relating to hearing loss. This research was published in the “Journal of Neuroscience.” The representative summarized the research as: “sometimes when there is a threshold shift and then the threshold reverses and a ‘normal’ hearing evaluation is recorded, that these ‘reversals’ are merely masking an actual more severe hearing loss due to injury to the cochlea, which is much slower in terms of manifesting hearing loss.” Turning to the evidence of record, the Board notes that the Veteran’s service treatment records (STRs) show his hearing was within normal limits on entrance into active duty. The separation physical showed a threshold of shift in the left ear at the 6000 Hz frequency. His STRs contain a record of Hearing Conservation Data which showed a significant threshold shift in both ears over two separate audiograms. The Veteran attended an April 2011 VA audiological examination. The examiner diagnosed the Veteran with sensorineural bilateral hearing loss. The examiner opined that the Veteran’s hearing loss was less likely as not caused by or a result of an event during his military service. Her rationale was that although there was “one audiogram in 1979 which showed mild threshold shift in the left ear, the shift was not permanent as subsequent audios, including separation audio showed completely normal hearing bilaterally.” However, the Board notes that the separation audiogram showed a threshold shift, especially in the Veteran’s left ear, and the examiner did not address this. Moreover, there was more than one audiogram in 1979; two separate Hearing Conservation Audiograms are of record, one in July 1979 and another in October 1979, each showing significant threshold shifts. For these reasons, the Board finds that this audiological report is not probative evidence. The Board notes that the Veteran is competent to report that he had hearing problems ever since service, and his statements are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, to include the medical articles regarding sensorineural hearing loss associated with the file. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Thus, the Board finds that the Veteran continued to experience sensorineural hearing loss, a chronic disease under 38 C.F.R. § 3.309, since his time in service. In sum, the Board is satisfied that the evidence of the continuity of sensorineural bilateral hearing loss symptomology provided the nexus between the Veteran’s currently diagnosed sensorineural hearing loss with his conceded excessive noise exposure in service. Furthermore, the Board finds that this continuity of symptomology is more probative than the VA examiner’s conclusions and negative nexus opinions. Therefore, the Veteran is entitled to service connection for his sensorineural bilateral hearing loss. REASONS FOR REMAND Service connection for diabetes mellitus, type II (DM) is remanded. Service connection for diabetic peripheral neuropathy (PN) of the left upper extremity is remanded. Service connection for right upper extremity peripheral neuropathy, secondary to DM is remanded. Service connection for left lower extremity peripheral neuropathy, secondary to DM is remanded. Service connection for right lower extremity peripheral neuropathy, secondary to DM is remanded. The Veteran asserts that this DM began in service and that he “was diagnosed as border line diabetic while on active duty and after discharge was diagnosed as full blown diabetic. Neuropathy is being requested as secondary to my diabetes.” In support of his claim, the Veteran signed an authorization for the release of his medical records from 1986 from his physician, Dr. Bartilucci. The physician’s office sent records from 2009 and asked whether VA needed more, and wrote, “as you know his records go way back.” No additional records have been associated with the file. These records, especially those from 1986, are crucial to the Veteran’s claim for DM and PN and should be obtained. The Veteran attended a VA General Medical examination in May 2013 and was diagnosed with “DM II – developed in 1986 by veteran’s report; managed by insulin and diet.” He was also diagnosed with “diabetic peripheral neuropathy – began in 2006 or 2007…” No nexus opinion was provided. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), a medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See also 38 U.S.C. § 5103A (d)(2) (2012); 38 C.F.R. § 3.159 (c)(4)(i). The Board requires a medical opinion regarding the Veteran’s diagnosed DM and diabetic peripheral neuropathy. The matters are REMANDED for the following action: 1. Obtain ALL the records from Dr. Bartilucci’s office, as authorized by the Veteran. 2. After records development is completed, the Veteran should be afforded a VA Diabetes Mellitus examination. The claim file should be reviewed by the examiner. All necessary tests should be conducted and the results reported. The examiner should elicit a full history from the Veteran and consider the lay statements of record. It is noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it at least as likely as not that the Veteran’s DM (a) began during active service, (b) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diabetic peripheral neuropathy. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not that any peripheral neuropathy is (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. A rationale for all opinions expressed should be provided as the Board is precluded from making any medical findings. 9. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel