Citation Nr: 21004663 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-38 052 DATE: January 27, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for hypertension is granted. Entitlement to service connection for bilateral glaucoma is granted. REMANDED Service connection for diabetes mellitus, type II, (DM II) is remanded. FINDINGS OF FACT 1. The most probative evidence reflects that the Veteran does not have a hearing loss disability for VA purposes in either ear. 2. The most probative evidence reflects that hypertension had its onset during active service. 3. The most probative evidence reflects that bilateral glaucoma had its onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. 2. The criteria for service connection for bilateral glaucoma are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to October 1990. These matters come before the Board of Veterans’ Appeals (Board) from a December 2017 rating decision. The Board notes the Veteran requested a hearing through his July 2018 and June 2020 substantive appeals. In a letter dated from October 2020, the Board requested from the Veteran whether he wanted a hearing. The letter indicates if he did not respond within 30 days the Board would assume he does not want a hearing, and no hearing will be scheduled. There was no response to the letter, and the hearing request is considered withdrawn. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309 (a), including sensorineural hearing loss as an organic disease of the nervous system, alternatively, service connection may be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or for conditions noted during service (or in a presumptive period) but not shown to be chronic at the time, by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303 (b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for sensorineural hearing loss if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307 (d). Lay assertions may also serve to support a claim for service connection by supporting the occurrence of lay-observable events such as the presence of a disability or symptoms of a disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). 1. Entitlement to service connection for bilateral hearing loss is denied. The Veteran submitted his claim for service connection for a hearing loss disability in April 2017. For the following reasons, the Board finds service connection for bilateral hearing loss is not established. The evidence shows the Veteran does not have a hearing loss disability in either ear. For VA compensation purposes, hearing loss is defined as a disability when the auditory puretone threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory puretone 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 (2018). The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The auditory thresholds set forth in § 3.385 establish when hearing loss is severe enough to constitute a disability. Hensley 5 Vet. App. at 159. The August 2017 VA examination report shows the Veteran’s puretone thresholds and speech discrimination scores do not satisfy the criteria for a hearing loss disability as defined in § 3.385. There were no puretone thresholds above 25 decibels at the relevant frequencies, and the Veteran’s speech discrimination scores were 96 percent for the right ear and 96 percent for the left ear. The Board does not doubt the Veteran is sincere in his belief that he has a hearing loss disability related to service. However, while competent to report subjective symptoms of hearing loss, he is not competent to determine whether it is disabling for VA compensation purposes because this is not a matter of lay observation but rather can only be established through objective clinical testing namely, by way of an audiogram and Maryland CNC speech discrimination test. See 38 C.F.R. § 3.385; see Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg but is not competent to identify more complex conditions such as a form of cancer). Moreover, the Board accords more weight to the audiological examination reports than to the Veteran’s lay statements in support of his claim. Unfortunately, at this time, the Board must deny the Veteran’s claim for entitlement to service connection for bilateral hearing loss for the lack of a current diagnosis because the audiological examination does not show puretone thresholds above 25 decibels at the relevant frequencies or speech discrimination scores less than 94 percent for either ear. As a disability is not shown, the first element of a service connection claim has not been met, and thus, it is not necessary to discuss an etiological relationship to service. The Board acknowledges the statements from the Veteran with respect to his noise exposure experienced during service. While the Board finds these assertions credible, the fact remains he does not have a hearing loss disability for VA purposes. As the preponderance of the evidence is against the claim of service connection for bilateral hearing loss, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107. 2. Entitlement to service connection for hypertension is granted. The Veteran seeks service connection for hypertension, a disability which he contends is related to his active service. The Board finds the evidence regarding the etiology of the disability is at least in equipoise, and thus, service connection is warranted. At the outset, the Board observes the Veteran has a diagnosis of hypertension. See August 2017 VA examination. Regarding an in-service occurrence, the Veteran’s service medical records reflect elevated blood pressure readings. For example, 136/104 was taken in July 1979, In October 1990, the same month he separated from active service, a service medical record notes a blood pressure reading of 136/106. As to a link between the in-service disease or injury and the current disability, a negative VA opinion is of record from August 2017. The examiner determined that during active service, the Veteran’s hypertension was acute, and there was no evidence of chronicity of care. A positive nexus opinion from a private clinician in July 2019 states that, although the Veteran’s hypertension may have appeared acute during active service, it is more likely than not the Veteran’s hypertension was subclinical during active duty prior to being diagnosed as a clinical disease. The clinician additionally noted that the Veteran was prescribed four blood pressure medications in 2005 and that all of his private medical records prior to 2007 had been destroyed. The Board acknowledges the negative VA nexus opinion of record. However, even if the Board were to find this opinion probative, the evidence would at least be in equipoise. Under such circumstances, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for hypertension is warranted. 3. Entitlement to service connection for bilateral glaucoma is granted. The Veteran also seeks service connection for bilateral glaucoma, a disability which he contends is related to his active service. Once again, since the evidence is in equipoise, the Board finds the Veteran’s claim should be granted. At the outset, the Board observes the Veteran has a diagnosis of bilateral glaucoma. See April 2018 Eye Conditions Disability Benefits Questionnaire. Regarding an in-service occurrence, the Veteran’s service medical records reflect several injuries to the eyes. For example, in September 1990 the Veteran requested a referral for his distance vision acuity, and he reported eye trouble on his September 1990 Report of Medical History. Furthermore, in his March 2018 NOD, the Veteran reports he believes the aircraft he served aboard during active service had faulty pressurization systems. He states that he believes the symptoms of headaches and blurred vision were associated with bilateral eye trauma he experienced while serving aboard these aircraft. He also recalls two eye injuries from his active service. His service medical records show that the Veteran reported headaches, and his service medical records report eye injuries in June 1977 and April 1981. Furthermore, his service personnel records received in April 2017 reflect schooling as a C-130 jet engine technician. Additional records dated March 1990 reflect the Veteran has excellent knowledge of the C-130E aircraft, and his knowledge and extensive experience is reflected within the performance appraisals of record that he received during active service. As such, the Board finds the Veteran’s lay statements credible in support of finding an in-service disease or injury. As to a link between the in-service disease or injury and the current disability, the Veteran was provided with a VA examination and opinion in September 2017. The examiner found the Veteran’s glaucoma and cataracts were less likely than not incurred in or caused while in service. A positive nexus opinion is of record from May 2019. The examiner notes the two eye injuries and conjunctivitis from the Veteran’s active service. The physician, who is a professor of ophthalmology and chief of the glaucoma division at the Duke Eye Center, opines it is possible that the Veteran’s eye injuries he sustained during active service could have contributed to some degree to the development of his primary open-angle glaucoma. The examiner notes the Veteran reported that the aircraft he served on were known to have a faulty pressurization defect, and the examiner opined they could not rule out that repeated ocular trauma could be related to the development of glaucoma. Another ophthalmologist provided a positive nexus opinion in May 2019. They note the Veteran had been under their care since September 1999, and the Veteran’s diagnosis is severe bilateral end-stage primary open-angle glaucoma. The physician notes the Veteran had been referred to them by another doctor who had already been prescribing the Veteran with eye drops in 1997. The physician notes the records from that period were destroyed. In support of their opinion, the examiner notes the Veteran’s eye injuries, severe conjunctivitis, documented complaints of distance vision loss during active service, and his treatment for multiple chronic and severe headaches throughout his military career. The examiner found it is more likely than not that the Veteran’s eye illness development during active service was due to the clear documentation of complaints of distance vision loss and other symptoms during active service. The physician further notes the Veteran was assigned to work aboard C-130 Hercules aircraft for 16 years, and it was recently discovered and published in military journals that the aircraft had faulty pressurization defects for years, which would cause high pressure to build up within the eye sockets. The examiner notes the Veteran flew all over the world to work on these aircraft during his military career. As above, the Board acknowledges the negative VA nexus opinion. However, even if the Board were to find this opinion probative, the evidence would at least be in equipoise. Under such circumstances, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for bilateral glaucoma is warranted. REASONS FOR REMAND Entitlement to service connection for DM II is remanded. The Veteran seeks to establish service connection for DM II. A February 2017 treatment report reflects a diagnosis of DM II, and a July 2019 positive nexus opinion is of record from the Veteran’s family medicine physician, who found it is more likely than not that the Veteran could have developed DM II during his military service before it was diagnosed as a clinical disease. The examiner further notes the Veteran had been on diabetic medications prior to 1997. Additionally, the clinician noted that older medical records have been destroyed. As rationale, the physician notes the Veteran worked up to 12 to 16 hours onboard C-130 Hercules aircraft for 16 years and that his diet consisted of Meals Ready-to-Eat (MREs), snacks, and foods from the country in which he was working. The physician notes the Veteran was often deployed in places for months at a time where the only sustenance were MREs. As a result, the examiner concludes the Veteran’s condition was possibly subclinical during active service. The examiner further concludes there are other risk factors that may have precipitated the Veteran’s DM II during active service such as smoking and subclinical blood pressure. The physician further notes the Veteran served on Guam from June 1979 to September 1980 and from what has been published, Agent Orange has been noted to have been stored and sprayed around Guam during that time. The Board finds a remand is required because the positive nexus opinion is insufficient for two reasons. First, the physician notes the Veteran’s diet during active service caused subclinical DM II. However, the examiner does not provide any rationale for why the Veteran’s DM II was subclinical during active service. The Board observes the examiner’s statements that the Veteran’s diet was poor or that he had subclinical hypertension, but these statements are not supported by any evidence. For example, there is no discussion of any laboratory data from the Veteran’s service medical records that might show or suggest subclinical DM II. Secondly, the opinion raises the theory of exposure to Agent Orange while the Veteran was stationed on Guam at Anderson Air Base. Although the record does not reflect the Veteran had active service in the Republic of Vietnam and is thus not presumed to have been exposed to herbicide agents such as Agent Orange, the Board finds since the Veteran’s military records show he served on Guam and given his family physician’s assertions, referral of this case to Joint Services Records Research Center (JSSRC) is necessary to verify herbicide agent exposure on Guam or to make any formal finding. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claim. 2. Request that JSRRC, or any other official source, investigate and attempt to corroborate the Veteran’s reports of alleged exposure to Agent Orange while stationed on Guam. JSRRC should provide the histories of the Veteran’s unit(s) during the time he served in Guam. If more detailed information is needed for this research, the Veteran should be given an opportunity to provide it. 3. If presumptive service connection is not found from the above development with the JSRRC, obtain an addendum opinion from a VA examiner regarding the Veteran’s diagnosed DM II. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. Following a review of all of the evidence: (a.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any DM II had its clinical onset during active service or is related to any in-service disease, event, or injury, to include the following: i. The July 2019 positive opinion of record from the Veteran’s family medicine physician finding that it is more likely than not the Veteran could have developed DM II during active service before it was diagnosed as a clinical disease due to the Veteran’s poor diet during active service; ii. The family physician’s assertion that a combination of factors from active service including smoking, an unhealthy diet, or subclinical blood pressure contributed to any subclinical DM II; and iii. The family physician’s assertion that the Veteran had already been on diabetic medications prior to 1997. If direct service connection is not found: (b.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any DM II was caused by the Veteran’s now service-connected hypertension. (c.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any DM II is aggravated (i.e., worsened) by the Veteran’s now service-connected hypertension. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.