Citation Nr: 18118129 Decision Date: 07/12/18 Archive Date: 07/12/18 DOCKET NO. 15-11 176 DATE: July 12, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for diabetes to include as secondary to hepatitis C is granted. REMANDED Entitlement to an increased rating in excess of 10 percent for hepatitis C. is remanded. FINDINGS OF FACT 1. Bilateral hearing loss is etiologically related to acoustic trauma sustained in active service. 2. Tinnitus is etiologically related to acoustic trauma sustained in active service. 3. Diabetes is etiologically related to the Veteran’s service connected hepatitis C. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in active service. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Tinnitus was incurred in active service. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for diabetes on a secondary basis have been met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1972 to December 1975. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2016). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b) (2016); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. 1. Entitlement to service connection for bilateral hearing loss and tinnitus The Veteran has asserted that he has tinnitus and bilateral hearing loss as a result of acoustic trauma sustained while in active service. Specifically, the Veteran has reported acoustic trauma in the form of explosions and gunfire. A review of the Veteran's service separation form shows that his military occupational specialty (MOS) while in active service was a medic. Therefore, the Board concedes the Veteran's exposure to acoustic trauma while in active service. A review of the service medical records is silent for treatment for or a diagnosis of tinnitus or hearing loss while the Veteran was in active service. However, the Veteran has reported that he first experienced tinnitus and hearing loss while in active service and has continued to experience tinnitus and hearing loss since his separation from active service. The Veteran is competent to report when he first experienced tinnitus and bilateral hearing loss and that the symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible. Regarding the Veteran’s claim for bilateral hearing loss, the Board notes that the Veteran was provided a VA examination in February 2015 with puretone auditory threshold results as follows: HERTZ Average 500 1000 2000 3000 4000 RIGHT 15 15 25 55 45 31 LEFT 20 20 40 60 60 40 Thus, the Veteran has met the requirements of 38 C.F.R. § 3.385 wherein VA recognizes hearing loss as 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. The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). The Veteran is competent to identify tinnitus and his statements have been found credible. In sum, the Board has conceded acoustic trauma during active service. The Veteran has competently reported that he first experienced tinnitus and bilateral hearing loss while in active service and that he has continued to experience it since that time and those statements have been found credible by the Board. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for tinnitus and bilateral hearing loss is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. 38 U.S.C. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for diabetes to include as secondary to hepatitis C. The Veteran contends that his diabetes is etiologically linked to his service connected hepatitis C. The Board upon review of the Veteran’s claims file finds that the evidence supports the Veteran’s contention and service connection for diabetes on the basis of secondary service connection is warranted. There is no dispute that the Veteran has a current diagnosis of diabetes most recently confirmed in a June 2014. Nor is there a dispute that the Veteran is service connected for hepatitis C by a July 2014 rating decision. The only remaining issue is whether the Veteran’s diabetes is etiologically linked to his hepatitis C. On this issue, the Board finds that the August 2013 correspondence from his treating physician is probative on this issue. This physician wrote in sum that the Veteran’s diabetes is at least as likely as not related to his hepatitis C citing several medical studies. The Board finds that this evidence is probative on the issue of nexus as the Veteran’s primary care physician is in a unique position to determine the relationship between the Veteran’ diabetes and hepatitis C. Moreover, the Board finds that this letter provides sufficient rationale in coming to this conclusion. Considering the foregoing, the Board finds that service connection for diabetes is warranted. REASONS FOR REMAND Entitlement to an increased rating in excess of 10 percent for hepatitis C is remanded. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal for increased rating in excess of 10 percent for hepatitis C. The Veteran last examination to determine the severity of his hepatitis C was in June 2014, four years ago. In the Veteran’s April 2018 testimony, he contended that this June 2014 examination was not adequate because of the unique relationship between his diabetes and hepatitis C had not yet been identified. Given the four years that have transpired and the fact that the Veteran is now service connected for diabetes, the Board finds that a new examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). VA's General Counsel has similarly indicated that when a Veteran asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995) (while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After the above development is accomplished, schedule the Veteran for appropriate VA examination(s). The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner(s) as part of the examination. A notation to the effect that this review has taken place should be made in the evaluation report. All tests, studies, and evaluations should be performed as deemed necessary by the examiner(s), and the results of any testing must be included in the examination report. (A) The examiner is asked to determine the nature and severity of the Veteran’s hepatitis C and (B) Should identify what symptoms, if any, the Veteran currently manifests that are attributable to his hepatitis C and what symptoms are attributable to his diabetes. (Continued on the next page)   3. Ensure that the examination report complies with this remand and the questions presented in this request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel