Citation Nr: 18158934 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 14-21 573 DATE: December 18, 2018 ORDER Service connection for left ear hearing loss, to include as secondary to diabetes mellitus, type II, is denied. FINDING OF FACT Left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and is not caused or aggravated by service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for left ear hearing loss, to include as secondary to diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.3.09, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to October 1970. He is the recipient of numerous awards and decorations, to include the Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office. In April 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In August 2016, the Board remanded the issue of entitlement to service connection for bilateral hearing loss for additional development. While on remand, service connection for right ear hearing loss was awarded. As such is a full grant of benefits sought on appeal with regard to such matter, it is no longer before the Board. In May 2018, the Board determined that further medical inquiry was necessary to decide the Veteran’s claim for service connection for left ear hearing loss and sought an expert medical opinion from the Veterans Health Administration (VHA) pursuant to VHA Directive 1602-01, which was received in July 2018. In August 2018, the Veteran and his representative were provided with a copy of the opinions and allowed 60 days to submit additional evidence and/or argument. The Veteran’s representative filed a response in October 2018. In March 2018, the Board remanded the issue of entitlement to service connection for erectile dysfunction for additional development. However, as the Agency of Original Jurisdiction (AOJ) is undertaking such development and has not recertified the issue, the Board will not address it at the present time. Finally, the Board observes that additional evidence, to include VA treatment records, has been associated with the record since the issuance of the October 2017 supplemental statement of the case; however, as such is irrelevant to the instant matter, or contains duplicative findings to those previously considered by the AOJ, the Board finds no prejudice to the Veteran in proceeding with a decision at this time. 38 C.F.R. § 20.1304(c). Entitlement to service connection for left ear hearing loss, to include as secondary to diabetes mellitus, type II. The Veteran contends that he developed left ear hearing loss as a result of in-service noise exposure to artillery, demolitions, explosions and mortar fire during combat in Vietnam where he served as a mortarman. In the alternative, he claims that his left ear hearing loss is caused or aggravated by his service-connected diabetes mellitus, type II. Consequently, he claims that service connection for left ear hearing loss is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). The record reflects that the Veteran is in receipt of the Purple Heart. As such, the provisions of 38 U.S.C. § 1154(b) are applicable in this case, which state, in pertinent part, that in any case where a veteran is engaged in combat during active service, lay or other evidence of service incurrence of a combat related disease or injury will be considered sufficient proof of service connection if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence during service, and, to that end, VA shall resolve every reasonable doubt in favor of the veteran. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The combat presumption, however, does not alleviate the requirement that the evidence show current disabilities attributable to the past in-service disorders. See generally Clyburn v. West, 12 Vet. App. 296, 303 (1999). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic disease of the nervous system, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In an October 4, 1995, opinion, VA’s Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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. The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted for hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for a hearing loss which first met VA’s definition of disability after service. Hensley, supra, at 159. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the record reflects that the Veteran has a current diagnosis of left ear hearing loss as defined by VA regulations. See July 2013 VA examination report. Furthermore, the Veteran’s reported in-service noise exposure is consistent with his documented combat service in Vietnam, and he is service-connected for diabetes mellitus, type II. Therefore, the remaining inquiry is whether his left ear hearing loss is related to such in-service noise exposure, or is caused or aggravated by his diabetes mellitus, type II. The Veteran’s service treatment records reflect that his left ear hearing acuity was normal for VA purposes upon his July 1968 entrance examination. In this regard, such was measured as 10 decibels at 500 Hertz and 0 decibels at 1000-4000 Hertz, which converts to 25 decibels at 500 Hertz, 10 decibels at 1000-3000 Hertz, and 5 decibels at 4000 Hertz in International Standards Organization-American National Standards Institute (ISO-ANSI) units. Further, such records are entirely negative for any complaints, treatment, or diagnosis referable to left ear hearing loss and, at the time of his reenlistment separation examinations in July 1970 and October 1970, the Veteran had 15/15 on a whispered voice test. Service treatment records from the Veteran’s Reserve period of service reflects that, upon his separation examination in September 1973, his left ear hearing acuity was measured as 5 decibels at 500-4000 Hertz in ISO-ANSI units. In a concurrent Report of Medical History, he denied currently or previously experiencing hearing loss. After the Veteran’s Reserve service, the record is silent for any complaints, treatment, or diagnosis referable to left ear hearing loss until December 2007, at which time he reported losing hearing in his left ear after a welding accident when a spark entered his left ear and burned the eardrum, leading to a subsequent infection in the ear and mastoid bone. Such post-service treatment records also reflect that the Veteran was diagnosed with diabetes mellitus in July 2010; however, such are silent for any indication that his left ear hearing loss is related to his diabetes mellitus. At a July 2013 VA examination, the Veteran was diagnosed with mixed (conductive and sensorineural) hearing loss in the left ear. However, the examiner opined it was not at least as likely as not that such hearing loss was related to service because the Veteran did not have hearing loss for VA purposes at the time of his September 1973 separation from Reserve service, and scientific evidence does not support delayed onset noise induced hearing loss. In a December 2016 addendum opinion, provided after the Veteran’s testimony at the April 2016 Board hearing and the receipt of additional post-service treatment records, the July 2013 VA examiner again opined that it is less likely as not that the Veteran’s left ear hearing loss is related to his military noise exposure. In support of such opinion, she again noted that there no significant threshold shift from the Veteran’s enlistment in 1968 to his separation from the Reserve in 1973, and no evidence of a specific hearing injury. The examiner cited a 2005 Institute of Medicine report entitled “Noise and Military Service - Implications for Hearing Loss and Tinnitus,” which stated that “there is not sufficient evidence in longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in a lifetime, long after the cessation of that noise exposure.” Thereafter, in his March 2018 Appellant’s Post-Remand Brief, the Veteran’s representative argued, in the alternative, that the Veteran’s left ear hearing loss was caused or aggravated by his service-connected diabetes mellitus, type II, and submitted a statement from by Dr. D.H.G., an internist who does not treat the Veteran, in which he indicated that he wished to make a general statement related to the association between diabetes mellitus, type II, and hearing loss. Specifically, Dr. D.H.G stated that diabetes mellitus, type II, is well known in the medical community for its wide-ranging impact on nearly every other facet of the body, to include sensorineural hearing loss. Consequently, he indicated that it was his medical opinion that diabetes was related to hearing loss in that it may cause to make hearing loss more severe and occur at a younger age causes and/or aggravates hearing loss. He premised his opinion on several peer reviewed medical articles that he attached as abstracts and in full to his statement. In this regard, Dr. D.H.G.’s opinion and the submitted medical articles only provide general information as to the possibility that a relationship exists between diabetes mellitus, type II, and hearing loss. They are not accompanied by any corresponding clinical evidence specific to the Veteran, and do not suggest a generic relationship between the Veteran’s service-connected diabetes mellitus, type II, and his left ear hearing loss with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See 38 C.F.R. § 3.159 (a)(1); Wallin v. West, 11 Vet. App. 509, 514 (1998); Sacks v. West, 11 Vet. App. 314, 317 (1998); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Mattern v. West, 12 Vet. App. 222, 227 (1999). Consequently, outside of raising a secondary theory of entitlement, the Board affords them no probative weight as to the specific question of whether the Veteran’s diabetes mellitus, type II, caused or aggravated his left ear hearing loss. However, as such theory has been raised, the Board obtained a VHA opinion in July 2018 in order to address such potential relationship. At such time, a VHA otorhinolaryngologist reviewed the entirety of the record, to specifically include Dr. D.H.G.’s opinion and cited medical articles, and opined that it was less likely as not that the Veteran’s left ear hearing loss is caused or aggravated by his diabetes mellitus. In support of his opinion, he noted that such articles found hearing loss in the low to mid frequencies (500 to 2000 Hertz) to be strongly associated with diabetes mellitus rather than hearing loss in the high frequencies (3000 to 8000 Hertz). The VHA examiner cited a 2017 article from Laryngoscope entitled “Diabetes-Related Changes in Hearing,” which described a study of veterans with and without diabetes mellitus, and noted that such showed that veterans with diabetes, both insulin-dependent and non-insulin-dependent, had the same or better thresholds beyond 3000 Hertz. He also noted that the study concluded that most of the diabetes-related hearing loss in veterans over the age of 50 with insulin-dependent diabetes mellitus was in the low to mid frequencies (500 to 2000 Hertz), and only the insulin-dependent diabetes group showed a 6-decibel threshold difference for thresholds less than or equal to 2000 Hertz. Consequently, he concluded that a careful review of such data indicates that the link between diabetes mellitus and hearing loss is complex and not at all conclusive. The VHA examiner further noted the audiometric findings referable to the Veteran’s left ear on examination in July 2013, August 2014, and March 2017, and found that the August 2014 and March 2017 tests showed significant resolution of the left ear conductive component that may have been secondary to cerumen impaction and/or an ear infection given his history of the spark-weld injury in the left ear. Further, an ENT examination documented a somewhat thickened left eardrum in August 2014, which is consistent with prior injury. The Board affords great probative weight to the VA examiner’s July 2013 and December 2016 opinions, and the VHA examiner’s July 2018 opinion as they considered all of the pertinent evidence of record, to include the Veteran’s lay statements and the nature of his in-service noise exposure, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). There is no medical opinion specific to the Veteran to the contrary. In this regard, the Board has considered the Veteran’s representative arguments in his March 2018 Appellant’s Post-Remand Brief that the VA examiner’s reliance on the 2005 IOM report was outdated; however, he does not identify any medical evidence that contradicts such medical treatise. In this regard, the appellant bears the burden of persuasion to show that the Board’s reliance on an examiner’s opinion was in error. Hilkert v. West, 12 Vet. App. 145, 151 (1999). Here, the Board founds that such burden has not been met as the Veteran’s representative’s arguments, without any supporting evidence, are tantamount to a disagreement with the VA examiner’s conclusion. In this regard, a VA examiner is presumed to have properly discharged his or her duties as a health professional (presumption of regularity) in a review of the record, in interviewing the Veteran, and supporting his or her opinion with medical analysis applied to the significant facts of the case and may only be rebutted by clear evidence to the contrary. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties); Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). Therefore, as such not been shown in this case, the Board finds the Veteran’s representative’s argument to be without merit. The Board further notes that, in his October 2018 Appellant’s Brief in Response to Medical Expert Opinion, the Veteran’s representative argued that, as the July 2018 VHA examiner indicated that the link between diabetes mellitus and hearing loss is complex and not at all conclusive, such left open the possibility that the Veteran’s diabetes mellitus could cause hearing loss. However, the Board finds such argument to be without merit. Specifically, such is contradicted by the July 2018 VHA examiner’s opinion that it was less likely as not that the Veteran’s left ear hearing loss is caused or aggravated by his diabetes mellitus. Moreover, the mere possibility of a relationship is too speculative to establish service connection. The Board has also considered the Veteran’s assertions that his left ear hearing loss is related to his acknowledged in-service noise exposure and/or his service-connected diabetes mellitus, type II; however, as he is a lay person, he does not possess the requisite training and experience necessary to address such a complex medical matter. Specifically, the etiology of hearing loss involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect as such requires the administration and interpretation of specialized testing to confirm the presence of such disorder, and knowledge of the impact various types of noise exposure has on one’s ability to hear. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of left ear hearing loss, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran’s opinion as to the etiology of his left ear hearing loss is not competent evidence and, consequently, is afforded no probative weight. The Board has also considered whether presumptive service connection for left ear sensorineural hearing loss is warranted, to include on the basis of continuity of symptomatology. In this regard, the Board has considered the Veteran’s report that his left ear hearing loss had its onset during his combat service in Vietnam, and has been present since such time. However, the contemporaneous evidence of record fails to show that the Veteran manifested left ear hearing loss to a compensable degree within the year following his separation from active duty in October 1970, or has been continuously present since such time. In this regard, as previously discussed, the Veteran’s audiometric examinations conducted throughout his active duty service, and at the conclusion of his Reserve service in September 1973, which is almost three years after his separation from active duty, showed normal hearing acuity in the left ear, and he denied currently or previously experiencing hearing loss. Moreover, the first complaint of left ear hearing loss was made in connection with a post-service welding accident when a spark entered his left ear and burned the eardrum. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Consequently, while the Board has considered the Veteran’s statements as to the onset and continuity of symptomatology of his left ear hearing loss, and respects the nature of his combat service, the Board finds that he is not an accurate historian in such regard. Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). Therefore, presumptive service connection for left ear sensorineural hearing loss is not warranted. Therefore, based on the foregoing, the Board finds that left ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest within one year of service discharge, and is not caused or aggravated by service-connected diabetes mellitus, type II. Consequently, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of service connection for left ear hearing loss. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Almosd, Associate Counsel