Citation Nr: 20005265 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 13-08 544 DATE: January 22, 2020 ORDER Entitlement to service connection for hearing loss is denied. REMANDED Entitlement to service connection for bladder cancer is remanded. FINDING OF FACT The Veteran’s bilateral hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease; additionally, the Veteran’s hearing loss is not secondary to service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from March 1965 to March 1969. This matter comes to the Board of Veterans’ Appeals (Board) from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In July 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing at the RO. The Board remanded this case for additional development in July 2017. The directives of the Board’s remand having been substantially complied with, the case is now returned for appellate review. Additional evidence has been added to the record since the last supplemental statement of the case in November 2019. To the extent that any of the evidence is relevant to the Veteran’s claim, he waived RO review of the evidence in December 2019. 1. Entitlement to service connection for hearing loss The Veteran contends that his hearing loss is either related to the acoustic trauma from military service or secondarily related to his service-connected diabetes. He has submitted several positive medical statements suggesting a relationship between his hearing loss and diabetes. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of bilateral sensorineural hearing loss as evidenced by an October 1998 VA audiology report. Organic diseases of the nervous system are enumerated conditions under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with hearing loss until October 1998, 29 years after his separation from service and 28 years outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of hearing loss since service and consistently since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he denied experiencing symptoms at separation from service and initially reported the onset of in approximately 1993, outside of the presumptive period. See, e.g., May 1998 VA treatment record noting onset of hearing loss symptoms 5 years prior. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Veteran asserts that the reported symptoms were manifestations of hearing loss, he is not competent to determine that these symptoms were manifestations of military noise-induced hearing loss as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms were instead attributable to post-service activities. A July 2019 VA examiner found that the Veteran’s hearing loss was likely related to life activities he had engaged in since leaving the military since the Veteran did not have hearing loss in the military. Service connection for hearing loss may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s hearing loss and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. A September 2017 VA examiner opined that the Veteran’s hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including his exposure to military noise. The rationale was that there were no significant threshold shifts, indicative of a noise injury, when comparing the entrance military examination and the exit examination. Thus, the examiner determined that there was no objective evidence to support the claim of military-related noise injury. The examiner further noted that the available service treatment records were silent for any complaint, diagnosis, or treatment of hearing loss. As a rationale was provided and the opinion was based on the Veteran’s complete medical history, and examination of the Veteran, the probative value of the September 2017 VA medical opinion is high. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Barr v. Nicholson, 21 Vet. App. 303 (2007), Stefl v. Nicholson, 21 Vet. App. 120 (2007), Prejean v. West, 13 Vet. App. 444 (2000). As noted, the Veteran also contends that his hearing loss is related to his service-connected diabetes mellitus. Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The next question for the Board is whether the Veteran has a current disability that is proximately due to or the result of or was aggravated beyond its natural progress by service-connected disability. On this question there is both positive and negative medical evidence. The positive medical evidence includes a July 2016 VA treatment record, which notes that the Veteran had long-standing diabetes mellitus type II that was poorly controlled, which might contribute more likely than not to his hearing loss. However, the probative value of this medical opinion is not high as it is somewhat equivocal and not based on any stated rationale. The Veteran also submitted an article on diabetes and hearing loss, which notes that people with diabetes had a 30 percent higher rate of hearing loss. However, this study does not address the Veteran’s medical case specifically; and does not provide any significant probative value in favor of his claim. A September 2017 Disability Benefits Questionnaire was submitted, which found that the Veteran’s hearing loss was related to his diabetes. However, there was no rationale provided. The medical evidence shows that the Veteran’s diabetes was diagnosed in approximately 2007 and the Veteran’s hearing loss was diagnosed in approximately 1998, which is a significant factor in determining any causation. The negative medical evidence includes a July 2019 Disability Benefits Questionnaire, which found that the Veteran’s hearing loss was not aggravated by his poorly controlled diabetes or his coronary artery disease. The examiner noted that the records showed that the Veteran had gradual hearing loss and that hearing loss caused by diabetes leads to sudden decreases in hearing, as a result of poor circulation to the hearing organ, which was effectively creating small strokes. The examiner noted that diabetes also tended to affect the hearing organ more evenly creating a flat, as opposed to down sloping, hearing loss. The examiner noted that the hearing loss pattern the Veteran had where the higher frequencies were affected more than the lower frequencies and the fact that it was gradual indicate that this was not related to a medical condition, but rather more likely than not environmental noise exposure. As noted, the examiner determined that since the Veteran did not have hearing loss in the military, the environmental noise exposure did not come from the military but other life activities that he had engaged in since leaving the military. The probative value of the July 2019 medical opinion is high as it is based on the Veteran’s complete medical history, a supported rationale, and prior contemporaneous examination of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Barr v. Nicholson, 21 Vet. App. 303 (2007), Stefl v. Nicholson, 21 Vet. App. 120 (2007), Prejean v. West, 13 Vet. App. 444 (2000). The Veteran believes his hearing loss is related to his military service and/ or proximately due to or the result of and/ or aggravated beyond its natural progression by his service-connected diabetes. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, the Board concludes that, while the Veteran has a current disability of hearing loss, the preponderance of the evidence is against finding that the Veteran’s hearing loss is proximately due to or the result of or aggravated beyond its natural progression by his service-connected diabetes mellitus. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The preponderance of the evidence also is against a finding that the Veteran’s hearing loss is related to military noise exposure. REASONS FOR REMAND 1. Entitlement to service connection for bladder cancer is remanded. The Veteran seeks service connection for bladder cancer, in part, due to exposure to contaminated water while he was serving at Robins Air Force Base. He has submitted numerous articles showing that Robins Air Force Base was contaminated by multiple chemicals. The Veteran asserts that his bladder cancer is related to this exposure. See correspondence/documents submitted by the Veteran in December 2017. None of the development in the file has addressed whether the Veteran was exposed to contaminated water while he served at Robins Air Force Base. Of note, the Veteran was treated for urethral discharge in service, which was later found to be gram positive for cocci. Additional development should be conducted to determine whether the Veteran was exposed to various contaminants while serving at Robins Air Force Base. A supplemental opinion also should be provided addressing the likelihood that the Veteran’s bladder cancer is related to any such exposure and/ or his findings of urethral discharge in service. The Veteran also asserts that his bladder cancer is secondarily related to his diabetes. Since the last Board remand, he has submitted an article noting that bladder is diagnosed more often in patients with diabetes. A negative medical opinion was provided in September 2017, which found that the Veteran’s bladder cancer was not proximately due to his diabetes; however, no rationale was provided. A June 2019 VA medical opinion determined that Metformin (used to treat diabetes) was not related to bladder cancer, noting that medical studies were inconclusive. However, the issue of aggravation was not addressed. Thus, another medical opinion is warranted to resolve these outstanding questions. The matters are REMANDED for the following action: 1. Conduct the necessary development to determine whether the Veteran was exposed to contaminants including in the water while serving at Robins Air Force Base. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bladder cancer is at least as likely as not related to any corroborated exposure to contaminants including contaminated water at Robins Air Force Base and/ or in-service findings of urethral discharge in February 1968. The medical opinion also should address whether the Veteran’s bladder cancer is proximately due to service-connected diabetes mellitus and/ or aggravated beyond its natural progression by service-connected diabetes mellitus, with consideration of the studies submitted by the Veteran showing a higher 35 percentage of diabetes patients who develop bladder cancer, to include from the effects of Metformin. (Continued on the next page)   A complete rationale should be provided for all expressed opinions. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.