Citation Nr: 18150174 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 09-44 480 DATE: November 14, 2018 ORDER Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure is denied. Entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to diabetes mellitus, type II is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran’s diabetes mellitus manifested to a compensable degree within the applicable presumptive period; that continuity of symptomatology is established; or that it is otherwise related to an in-service injury, event, or disease. 2. The weight of the evidence is against a finding that the Veteran’s bilateral lower extremity neuropathy is proximately due to or aggravated beyond its natural progression by a service-connected disability, or is otherwise related to an in-service injury, event, or disease. 3. The Veteran’s service-connected bilateral hearing loss disability is productive of level III hearing acuity in the right ear and level III hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus have not been met. 38 U.S.C. § 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for bilateral lower extremity neuropathy have not been met. 38 U.S.C. § 1110 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for entitlement to a compensable disability evaluation for the Veteran’s service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection 1-2. Entitlement to service connection for diabetes mellitus, to include as due to Agent Orange exposure; and bilateral lower extremity neuropathy, to include as secondary to diabetes mellitus, type II Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as diabetes mellitus, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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. 38 C.F.R. § 3.303(d). Applicable law also provides that a Veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C. § 1116; see also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Regulations further provide, in pertinent part, that if a Veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin’s disease; multiple myeloma; non- Hodgkin’s lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); Type II diabetes mellitus, and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). The Board notes that the Veteran did not serve in Vietnam, nor has she contended otherwise. Consequently, she is not presumed to have been exposed to Agent Orange or other herbicides. Instead, at her October 2016 Board hearing, she testified that she was stationed in Okinawa from October 1970 to June 1971; and she remembers seeing Agent Orange being sprayed, stored, used, and talked about in Okinawa. She also testified the while stationed at Fort McClellan in Alabama she was exposed to PCBs. The RO attempted to verify the Veteran’s alleged exposures. In July 2017, the United States Army and Joint Service Records Research Center (JSRRC) stated that “we are unable to document [the Veteran] was exposed to Agent Orange or other tactical herbicides during the period September 4, 1970 – June 30, 1971 at Okinawa, Japan.” It suggested that inquiries concerning herbicides/pesticides on Department of Defense (DoD) military facilities should be referred to the Armed Forces Pest Management Board (AFPMB). The RO contacted the AFPMB. In November 2017, the AFPMB responded that the statement about DoD policy indicates that the herbicides used at the time were commercially available products registered by the federal government for public use. It stated that no Agent Orange or other tactical herbicides were used there. It also stated that PCBs are not a pesticide and that it does not have the data to address them. It stated that concerns about PCBs by Veterans of service at Fort McClellan usually arise from the chemical plant off post in Anniston, or the Army Chemical Warfare School that was at Fort McClellan in the 1960s, neither of which involved pesticides. In November 2017, the Veteran also received a response from VBAVACO. It stated that “DoD has not identified any location on the island of Okinawa where Agent Orange was used, tested, stored, or transported. Agent Orange was developed for jungle combat operations in Vietnam and was used there from 1962 to early 1971. There were no combat operations on Okinawa during those years and so there was no need for Agent Orange use there. Additionally, Okinawa was not on the Agent Orange shipping supply line, which went directly from storage at Gulfport, Mississippi to South Vietnam via merchant ships.” The preponderance of the evidence weighs against a finding that the Veteran was exposed to either Agent Orange or PCBs. Consequently, presumptive service connection for diabetes mellitus is not warranted. Moreover, service connection is not warranted for diabetes mellitus on a direct basis either. The service treatment records fail to reflect any findings attributable to diabetes mellitus. At her October 2016 Board hearing, the Veteran testified that she was diagnosed with diabetes 30 years ago (approximately 1986). This is substantiated by a January 2001 treatment report in which she stated that she has had diabetes mellitus with significant sequelae (peripheral neuropathy) since 1986. Consequently, the Veteran was not diagnosed with diabetes for approximately 15 years after service. The Veteran testified that her doctor told her that “it may have been present but not diagnosed for ten to fifteen years prior to that.” If true, that would mean a possible onset of diabetes in service. However, such an opinion is clearly speculative and cannot support the claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim); Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor’s statement framed in terms such as “could have been” is not probative). A VA examination was conducted in August 2017. The examiner noted that the Veteran had no service in Vietnam, or other potential causes of diabetes related to military service. He opined that the Veteran’s disability is a primary condition, without identified cause of etiology other than age, weight, diet, and family history. He submitted an August 2017 addendum in which he stated that “my review of current medical texts, including UPTODATE, did not identify PCBs in their list of agents leading to diabetes type 2.” In the absence of any in-service findings of diabetes mellitus, and in the absence of a competent medical opinion linking her current diabetes to service, the Board finds that a preponderance of the evidence weighs against the claim. With regard to the Veteran’s bilateral lower extremity neuropathy, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Given that the Veteran is not service connected for diabetes mellitus, she cannot be service connected for bilateral lower extremity neuropathy as secondary to diabetes mellitus. The Veteran has not contended that her lower extremity neuropathy is directly related to service. Increased Ratings 3. Entitlement to a compensable rating for bilateral hearing loss Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The current version of the Ratings Schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of §3.383 of this chapter. Id. A noncompensable evaluation is provided where hearing in the better ear is I and hearing in the poorer ear is I through IX; where hearing in the better ear is II, and hearing in the poorer ear is II to IV; or where there is level III hearing in both ears. A 10 percent disability rating is warranted where hearing in the better ear is I, and hearing in the poorer ear is X to XI; or where hearing in the better ear is II, and hearing in the poorer ear is V to XI; or where hearing in the better ear is III, and hearing in the poorer ear is IV to VI. A 20 percent disability rating is warranted where hearing in the better ear is III, and hearing in the poorer ear is VII to XI; or where hearing in the better ear is IV, and hearing in the poorer ear is VI to VIII; or where hearing in the better ear is V, and hearing in the poorer ear is V to VI. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran underwent a VA examination in February 2011. The examiner reviewed the claims file in conjunction with the examination. Pure tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 35 50 55 55 48.75 LEFT 35 50 50 60 48.75 The pure tone average was 48.75 (49) decibels in the right ear and 48.75 (49) decibels in the left ear. Speech recognition scores were 100 percent in the right ear and 94 percent in the left ear. Such examination findings translate to level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating. The Veteran underwent an examination at the Bay Hearing Center in October 2011. The examiner reviewed the claims file in conjunction with the examination. Pure tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 50 55 55 50 52.5 LEFT 45 60 55 55 53.75 The pure tone average was 52.5 (53) decibels in the right ear and 53.75 (54) decibels in the left ear. Speech recognition scores were 96 percent (twice) in the right ear and 96 and 100 percent in the left ear. However, there is no indication that the speech recognition was tested using the Maryland CNC test. Using Table VIa (which determines hearing impairment solely on puretone threshold average), such examination findings translate to level III hearing in the right ear and level III hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating. The Board notes that if the speech recognition scores were used, using Table VII, the findings would translate to level I hearing in the right ear and level I in the left ear. Consequently, this would also equate to a 0 percent rating. The Veteran underwent a VA examination in August 2017. The examiner reviewed the claims file in conjunction with the examination. Pure tone thresholds for the ears were as follows: HERTZ 1000 2000 3000 4000 Avg. RIGHT 45 60 65 65 58.75 LEFT 50 65 65 65 61.25 The pure tone average was 58.75 (59) decibels in the right ear and 61.25 (61) decibels in the left ear. Speech recognition scores were 88 percent in the right ear and 86 percent in the left ear. Such examination findings translate to level III hearing in the right ear and level III hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, Diagnostic Code 6100, this equates to a 0 percent rating. Analysis The Veteran has been assigned a 0 percent rating. This rating was based on the results of February 2001 and August 2017 VA examinations. Both examinations showed puretone averages and speech recognition scores which equated to a 0 percent rating for bilateral hearing loss. Exceptional patterns of hearing loss were not were shown. (Continued on the next page)   In her March 2013 substantive appeal, the Veteran took issue with the fact that the RO did not accept private audio examination because it used different speech recognition scores. As noted above, even the Bay Hearing Center examination resulted in findings that equated to a 0 percent rating. The 0 percent rating is the result regardless of whether the Board uses Table VIa to determine hearing loss without the speech recognition scores, or the Board uses Table VII and uses the non Maryland CNC scores. In either case, the result is a 0 percent rating. The Board acknowledges the impact of his hearing loss on his daily activities. The Board also acknowledges VA’s obligation to resolve all reasonable doubt in the Veteran’s favor. However, as noted previously, because assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered there is no doubt as to the proper evaluation to assign. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (finding that when a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria); 38 C.F.R. § 4.85, Tables VI, VIA, and VII, Diagnostic Code 6100. Applying the audiological test results to the regulatory criteria, the Board is compelled to conclude that the preponderance of the evidence is against entitlement to a compensable rating. Thus, there is no reasonable doubt to be resolved. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel