Citation Nr: 18160102 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 16-18 959A DATE: December 21, 2018 ORDER Service connection for a left ankle disability, to include as due to exposure to environmental hazards at Camp Lejeune, is denied. Service connection for diabetes mellitus, to include as due to exposure to environmental hazards at Camp Lejeune, is denied. Service connection for a gastrointestinal disorder, to include as due to exposure to environmental hazards at Camp Lejeune, is denied. Service connection for bilateral hearing loss is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for right ankle degenerative arthritis with tenosynovitis. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. FINDINGS OF FACT 1. The Veteran served on active duty from June 1975 to June 1977, including at least 30 days of service at Camp Lejeune. 2. A current disorder of the left ankle is not shown. 3. Diabetes mellitus was not shown in service or to a compensable degree within one year of service and symptoms of diabetes mellitus were not continuous since service. 4. Diabetes mellitus is not causally or etiologically related to service. 5. A gastrointestinal disability is not causally or etiologically related to service. 6. Bilateral hearing loss is etiologically related to acoustic trauma sustained in active service. CONCLUSIONS OF LAW 1. A left ankle disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2018). 2. Diabetes mellitus was not incurred in or aggravated by service, nor may it be presumed to have been incurred or aggravated by service. 38 U.S.C. §§ 1110, 1112, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2018). 3. A gastrointestinal disorder was not incurred in or aggravated by service, nor may it be presumed to have been incurred or aggravated by service. 38 U.S.C. §§ 1110, 1112, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2018). 4. Bilateral hearing loss was incurred in service. 38 U.S.C. §§ 1110, 1116, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the denial of entitlement to service connection for a right ankle disability was initially appealed by the Veteran, but subsequently granted in an April 2016 rating decision. Therefore, this issue is no longer before the Board. Instead, the Veteran has disagreed with the initial disability rating for his service-connected right ankle disability. This matter is addressed below. Diabetes mellitus, gastrointestinal disorder, and left ankle The Veteran contends that he has diabetes mellitus, a gastrointestinal disorder, and a left ankle disorder due to exposure to contaminated water at Camp Lejeune. VA has recently established a presumption of service connection for certain diseases for veterans, former reservists, and former National Guard members who were exposed to contaminants in the water supply while serving at U.S. Marine Corps Base Camp Lejeune, North Carolina, for no less than 30 days (either consecutive or nonconsecutive) from August 1, 1953, to December 31, 1987. See 38 U.S.C. §§ 1101, 1112, 1137; Diseases Associated with Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4,173 (Jan. 13, 2017) (to be codified at 38 C.F.R. §§ 3.307, 3.309). Service personnel records confirm that the Veteran was stationed at Camp Lejeune beginning in September 1975 until discharge in June 1977. Therefore, he is considered a “Camp Lejeune Veteran.” However, none of the claimed disorders are presumed to be associated with exposure to contaminants at Camp Lejeune. 38 C.F.R. § 3.309 (f). Service connection may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Diabetes mellitus is considered a chronic disease under 38 C.F.R. § 3.309. Presumptions aside, 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); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (when a claimed disability is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact “incurred” during service). Whether service connection is claimed on direct, presumptive, or secondary basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Initially, with regard to the left ankle, post-service treatment evidence and VA examinations do not document a diagnosed left ankle disorder. March 2013 VA treatment notes reflect complaints of pain in both ankles, but x-rays were only completed of the right ankle at that time. Pain alone may constitute a disability without a diagnosis if the pain results in disabling functional limitation. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). VA treatment notes do not reflect functional loss in the left ankle, and VA examinations conducted in November 2018 and March 2018 show no loss of range of motion or strength in the left ankle. There was also no objective evidence of painful motion in the left ankle or ligament laxity. The Veteran has offered lay evidence of a sprained ankle in service and ankle pain currently, but no other description of functional loss that constitutes a disability. Therefore, a preponderance of the evidence reflects that the Veteran does not have a current disability of the left ankle for which service connection may be granted. Consequently, service connection for a left ankle disorder is denied. With respect to the diabetes mellitus and gastrointestinal disorders, post-service treatment evidence reflects that the Veteran currently has such disabilities. The Veteran receives treatment for diabetes mellitus and gastrointestinal complaints with diagnoses of gastritis, dyspepsia, reflux esophagitis and irritable bowel syndrome (IBS). However, service treatment records are negative for any such complaint, treatment, or diagnosis. Moreover, the competent evidence does not establish that any of these diagnosed disorders are a result of military service. Medical evidence documents that diabetes mellitus had its onset in 1993, which was 16 years after the Veteran’s discharge. Therefore, it did not manifest to a compensable degree within one year of discharge to a grant of service connection on a presumptive basis. The medical evidence also does not indicate that the Veteran’s diabetes mellitus is otherwise associated with his military service. In addition, while the medical evidence supports the Veteran’s contentions that he has had gastrointestinal complaints for over the years, it does not suggest a relationship between any of his symptoms or diagnoses and his military service. The Board has considered the Veteran’s lay statements that such disorders were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination reports and clinical findings than to his statements. As such, the medical records are more probative than the Veteran’s lay assertions of a connection to his military service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeals are denied. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Bilateral hearing loss After the last adjudication of the appeal by the Regional Office in April 2016, additional evidence was added to the claims file, including a March 2018 VA examination assessing the etiology of the Veteran’s hearing loss. No supplemental statement of the case was issued by the RO in consideration of this new evidence. However, as the Board’s decision below is fully favorable to the Veteran, there is no prejudice to him in the Board adjudicating the issue of entitlement to service connection for bilateral hearing loss. The Veteran contends that he has bilateral hearing loss as a result of military noise exposure from weapons fire, and his service personnel records confirm military occupational specialties of Rifleman and Ammo Man. Hearing loss was diagnosed at a March 2018 VA examination, which found the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 25 30 40 LEFT 25 25 30 25 40 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 98 percent in the left ear. As the Veteran has at least one auditory threshold at any of the above frequencies that is 40 decibels or greater, the Board finds that he has a current disability of bilateral hearing loss as defined by VA regulations. 38 C.F.R. § 3.385. Moreover, the March 2018 VA examiner stated that the Veteran was exposed to hazardous levels of military noise while service as an infantryman and that this type of noise exposure has been demonstrated to create cochlear damage causing cochlear hearing loss. There are no contradictory opinions of record. In light of the above, the Board determines that the Veteran’s bilateral hearing loss is at least as likely as not a result of his military service. Therefore, the appeal is granted. REASONS FOR REMAND Subsequent to the March 2018 VA examination, in May 2018, the Veteran submitted a notice of disagreement and VA Form 9 in which he indicated that the March 2018 VA examiner had made racist remarks and therefore, the Veteran questioned the accuracy of the examination report provided by that examiner. The Board determines that a remand is necessary so that another VA examination may be scheduled to assess the severity of the Veteran’s right ankle disability. In a March 2014 statement, the Veteran indicated that he has depression secondary to his physical disabilities. No VA examination has been performed to assess the etiology of his acquired psychiatric disorder. Therefore, the appeal is remanded so that a VA examination can be scheduled. These matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding VA and private treatment records pertinent to the Veteran’s claims. 2. Schedule the Veteran for an examination to determine the degree of severity of his right ankle disability. All pertinent evidence of record must be made available to and reviewed by the examiner, and any indicated tests and studies should be performed. 3. Schedule the Veteran an examination to assess the etiology his acquired psychiatric disorder. All pertinent evidence of record must be made available to and reviewed by the clinician, and any indicated tests and studies should be performed. Based on the review of the record, the clinician is asked to offer a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the acquired psychiatric disorder originated during active service or is otherwise etiologically related to active service. If the answer to the above is negative, the clinician is asked to offer a medical opinion as to whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that the acquired psychiatric disorder was caused or aggravated beyond normal progression by one or more of the Veteran’s service-connected disabilities. The rationale for each opinion expressed must also be provided. If the clinician is unable to provide any required opinion, he or she should explain why. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. 4. Then, the issues on appeal should be readjudicated and if it remains denied, a supplemental statement of the case should be issued to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if warranted. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel