Citation Nr: 20021634 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-23 143 DATE: March 26, 2020 ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for diabetes mellitus, type II, to include as secondary to service-connected disabilities, is granted. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran’s current bilateral hearing loss for VA purposes is at least as likely as not related to his noise exposure from service. 2. The Veteran has experienced ringing in his ears related to tinnitus due to hazardous noise exposure in service. 3. The competent and probative evidence shows the Veteran’s current diabetes mellitus is proximately due to his obesity caused by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309(a). 3. The criteria for secondary service connection for diabetes mellitus, type II, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from June 1966 to May 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in January 2020. A transcript of that hearing is of record. The Board notes TDIU has been raised by the record at the Board hearing. Although not adjudicated by the RO, the issue of TDIU is part and parcel of a claim for a higher evaluation, and the Veteran has asserted that his service-connected disabilities cause his inability to work. See Rice v. Shinseki, 22 Vet. App. 447, 454–55 (2009). Therefore, the issue of the Veteran’s entitlement to TDIU is properly before the Board. 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; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In a claim of service connection for impaired hearing, demonstration of the first Shedden element—i.e., the existence of a current disability—is subject to the additional requirements of § 3.385, which provides that service connection for impaired hearing shall not be established until the hearing loss meets pure tone and/or speech recognition criteria. Under this regulation, hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies 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. Service connection for certain diseases, such as an organic disease of the nervous system, including sensorineural hearing loss and tinnitus, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Tinnitus is considered an organic disease of the nervous system, and as such is an enumerated chronic disease. See 38 U.S.C. §§ 1101, 1112; Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, Oct. 4, 1995; see Fountain v. McDonald, 27 Vet. App. 258, 271 (2015) (holding that 38 C.F.R. § 3.309(a) “includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an ‘organic disease of the nervous system’”); 38 C.F.R. §§ 3.307, 3.309. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990). 1. Entitlement to service connection for bilateral hearing loss. The Veteran asserts service connection for bilateral hearing loss. The Veteran underwent a VA audiological examination in May 2015. For the Veteran’s right ear, the results were: A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 25 35 45 80 70 65 70 For his left ear, the results were as follows: A B C D E F G 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 25 40 30 65 55 55 60 His speech discrimination score was 96 percent in the both ears. The Veteran has a current diagnosis of bilateral hearing loss for VA purposes, and the examiner noted he had sensorineural hearing loss. However, regarding the etiology, the examiner provided a negative opinion. The examiner acknowledged the Veteran’s noise exposure in service (exposure to loud from generators and demolition), but stated that the Veteran’s enlistment and separation examinations were normal, and that his hearing loss was less likely than not due to noise exposure in service. The Board finds this examination to have some probative weight as the examiner conducted an in-person examination, and accounted for the Veteran’s lay statements. However, the examiner overly relies on normal hearing at separation, while seemingly discounting the Veteran’s statements that he has had longstanding hearing loss. The Veteran’s military occupational specialty (MOS) was as a combat engineer, and the Board finds he had significant noise exposure consistent with the types, places, and circumstances of such service. Additionally, he testified at the Board hearing in January 2020 that he participated in demolition training. The Board finds the Veteran to be competent and credible to describe his in-service noise exposure. The Veteran submitted a private medical opinion. The physician, while not an audiologist, provided a positive nexus opinion. It was explained that hearing loss is progressive with a gradual deterioration and that rapid hearing loss is possible in acute disease or trauma. In the Veteran’s situation, it was likely that his hearing loss was progressive, and that his noise exposure was likely the cause. The Board finds this opinion to have probative value even though the physician was not an audiologist. The opinion was supported with appropriate rationale and accompanying medical literature. Moreover, it was explained why the Veteran’s hearing loss would likely be progressive rather than sudden. For these reasons, the Board finds this opinion to be entitled to probative weight. After review of the competent and probative evidence, the Board concludes the evidence is at least in equipoise that the Veteran’s bilateral hearing loss is related to his noise exposure in service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The above noted VA examination shows that the Veteran has a current diagnosis of bilateral hearing loss for VA purposes. However, the VA examiner provided a negative nexus opinion. In contrast, the Veteran provided a positive nexus opinion that explained that hearing loss can be delayed for years after noise exposure. As the evidence has strengths and weakness, the Board finds that they balance out. 38 C.F.R. § 3.102; see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting that the benefit of the doubt rule is a unique standard of proof, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits”). Therefore, when resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise that the Veteran’s current bilateral hearing loss for VA purposes is related to hazardous noise exposure in service. This places the evidence regarding the nexus into equipoise on this material issue. 38 U.S.C. § 5107(b). As such, the Board finds that service connection for bilateral hearing loss is warranted. 38 C.F.R. § 3.303. 2. Entitlement to service connection for tinnitus. The Veteran contends that he has had tinnitus since shortly after service. After reviewing the pertinent medical and lay evidence, the Board concludes that while the Veteran’s tinnitus was not diagnosed during service, there has been continuity of the same symptomatology beginning shortly after service. The Veteran has a current diagnosis of tinnitus as shown at the examination in May 2015. As such, the first element of service connection has been met. Regarding the second element of service connection, noise exposure has been found as noted above. He is competent to report that he experienced hearing problems and ear ringing during service beginning with demolition training. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board finds no reason to doubt his credibility; therefore, the Board finds his evidence in this regard to be credible and entitled to probative weight. Moreover, his testimony is consistent with other evidence of record. The May 2015 examiner could not opine on the Veteran’s tinnitus without speculation. The examiner explained why speculation was required (noting that there are many causes of tinnitus). The examiner did state that the Veteran’s statements regarding the time course of his tinnitus is deemed important. However, the Board finds this opinion to have little probative value as the examiner did not opine on the Veteran’s tinnitus etiology. Additionally, the Veteran provided a positive private opinion that links the Veteran’s tinnitus with his bilateral hearing loss. The Board finds this opinion to have some probative weight regarding the Veteran’s tinnitus as it was explained that tinnitus is associated with hearing loss, but at times the opinion is speculative, i.e., it is not known why tinnitus only affects some individuals with hearing loss. After review of the competent and probative evidence, the Board finds that the evidence shows the Veteran’s tinnitus is related to hazardous noise exposure while in service. The Board notes that there is an opinion that did not opine on the etiology, and a somewhat speculative positive opinion. However, the Veteran has testified that he has had longstanding tinnitus that began during service. Therefore, the Board finds that when resolving reasonable doubt in favor of the Veteran, his tinnitus is related to hazardous noise exposure in service. As such, service connection for tinnitus is warranted. 38 C.F.R. § 3.303. 3. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disabilities. The Veteran asserts service connection for diabetes mellitus, type II. The General Counsel (GC), VA, recently issued a precedential opinion on how the issue of obesity is to be assessed. One of the primary holdings of the opinion is that obesity is not a disability for purposes of VA benefits; hence, it cannot be the subject of service connection. VAOPGCPREC No. 1-2017 (Jan. 6, 2017); see also, Marcelino v. Shulkin, 29 Vet. App. 155 (2018). The GC recognized further, however, that obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). As such, VA may service connect the current disability on a secondary basis under 38 C.F.R. § 3.310(a). To determine whether obesity is an intermediate step between a service-connected disability and the development of a current disability that may be service connected on a secondary basis, the following criteria must all be satisfied: 1) the service-connected disability must have caused the Veteran to become obese; 2) the obesity, as a result of the service-connected disability must have been a substantial factor in causing the potential secondary disability; and 3) the potential secondary disability would not have occurred but for the obesity caused by the service-connected disability. The Board concludes that the Veteran has diabetes mellitus, type II, and when resolving reasonable doubt in favor of the Veteran, the competent and probative evidence shows that the Veteran’s service-connected disabilities caused him to become obese, which was a substantial factor in causing his disability. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. The Veteran has a current diagnosis of diabetes mellitus to include as noted in VA treatment records. As such, the first element of service connection is met. The Board notes that the Veteran is service connected for right foot osteoarthritis. The Veteran has submitted a private opinion that opines on the relationship between the Veteran’s service-connected disability, his obesity, and his diabetes mellitus. The physician noted that the Veteran’s diabetes mellitus was likely secondary to his obesity caused by his service-connected right foot disability. It was explained that his weight gain has been a progressive issue for the Veteran, and that it was plausible that his right foot disability was the crux of the Veteran’s obesity as the Veteran’s ability to exercise has been reduced because of his foot. Moreover, as his body mass index increased, so did his risk for his current diabetes mellitus, type II. The physician explained that body mass index (over 30) has a strong relationship to diabetes. The opinion concludes that the Veteran’s right foot disability impaired his ability to remain physically active leading to obesity, which in turn played a significant role in the development of the Veteran’s diabetes mellitus. The Board finds this opinion to have much probative weight. The physician explains the relationship between the Veteran’s service-connected disability and his obesity. It is then explained how obesity and increased body mass index increases the risk for diabetes mellitus. The Board finds the rationale and support to be well-reasoned. Therefore, it is entitled to much probative value. Additionally, the Board notes that the Veteran’s weight at separation was 210. He currently weights 233 pounds. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence shows that his service-connected right food disability caused the Veteran to become obese, which in turn, caused his diabetes mellitus. 38 U.S.C. § 5107(b). The Veteran has submitted a private medical opinion showing a relationship between his service-connected disability, weight gain, and diabetes mellitus. The Board notes that there is no negative opinion regarding the relationship between the Veteran’s service-connected disability, obesity, and diabetes mellitus. In sum, after reviewing the evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, that his service-connected disability caused him to become obese. His obesity in turn has been found to be a substantial factor in causing his diabetes mellitus. As such, his diabetes mellitus, a secondary disability, would not have occurred but for the obesity caused by the service-connected right foot disability. As such, the Board finds that the evidence shows that the Veteran’s diabetes mellitus is secondary to his service-connected disability. Therefore, the Board finds that service-connection for diabetes mellitus is warranted.   REASONS FOR REMAND Entitlement to TDIU is remanded. The issue of entitlement to TDIU was raised at the Board hearing in January 2020. The Board notes that the Veteran currently does not meet the schedular requirements for TDIU (he is rated at 10 percent for his service-connected disability). 38 C.F.R. § 4.16. However, this decision grants service connection for several disabilities, and initial ratings need to be assigned by the AOJ in the first instance. The Veteran has recent submitted a VA Form 21-8940 with occupational and educational information to assist with adjudication of this matter. See 01/27/2020 VA 21-8940. This matter is REMANDED for the following action: Assign ratings for the Veteran’s bilateral hearing loss, tinnitus, and diabetes mellitus. Then, adjudicate the Veteran’s claim for TDIU. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, Associate Counsel 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.